The European Charter of Local Self-Government: A Treaty for Local Democracy 9781474403344

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The European Charter of Local Self-Government A Treaty for Local Democracy

C. M. G. Himsworth

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© C. M. G. Himsworth, 2015 Edinburgh University Press Ltd The Tun – Holyrood Road 12 (2f) Jackson’s Entry Edinburgh EH8 8PJ www.euppublishing.com Typeset in Sabon by 3btype.com, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 1 4744 0333 7 (hardback) ISBN 978 1 4744 0334 4 (webready PDF) ISBN 978 1 4744 0849 3 (epub) The right of C. M. G. Himsworth to be identified as author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 and the Copyright and Related Rights Regulations 2003 (SI No. 2498).

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Contents

Acknowledgement iv Preface v 1 Introduction

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2 Charter Origins

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3 The Charter’s Text and Additional Protocol

30

4 The Institutions and Procedures of Charter Implementation and Enforcement

84



5 Charter Interpretation and Application

120



6 Charter Impact: Influencing Local Self-Government in Europe

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7 Charter Impact: Beyond European Local Self-Government

168



8 General Conclusions

184

Bibliography 195 Index 197

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Acknowledgement

In the course of this book, many Council of Europe documents are referred to. In particular, in Chapter 3, substantial extracts are reproduced from the European Charter of Local Self-Government (European Treaty Series No. 122), its Explanatory Report, and, to a lesser extent, its Additional Protocol on the Right to Participate in the Affairs of a Local Authority (European Treaty Series No. 207). These documents (the Charter, in particular) are also widely referred to and, to a more limited extent, quoted in other parts of the book, and they are joined (for example, at page 112 where a number of Recommen­dations of the Congress of Local and Regional Authorities of the Council of Europe are listed) by other Council of Europe documents. All such documents (© Council of Europe) may be accessed via http:www.coe.int/en/web/portal/home

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Preface

I had begun to take an interest in the existence of the European Charter of Local Self-Government in the years before the United Kingdom’s signature and ratification of the treaty in 1997 and 1998 but it was in the years following, as the British member of the Group of Independent Experts of the Congress of Local and Regional Authorities of Europe, that I had the opportunity, under conditions of near anonymity, to draft Charter-based monitoring reports and other Charter-related documents. And it had seemed to me at that time that, in the absence of any other published account, a general description and analysis of the Charter was required. This short book is the result. Drawing on sources entirely in the public domain, it provides a personal view of the Charter’s history, its text, the way it has been interpreted and applied, its broader significance and, more tentatively, its future. At some points, the book has a specifically United Kingdom focus but, for the most part, the coverage is Europe-wide. In the course of the book’s preparation, I have accumulated a number of debts. The most important is to my Edinburgh colleague, Dr James Harrison, whose support, especially in reading and commenting on draft material, was enormously valuable. And then to the Edinburgh University Press readers (they know who they were but I do not) who reported sufficiently favourably on the complete draft. I should also mention the staff of the Council of Europe’s archives. Their help in tracing some of the historical sources for Chapter 2 was invaluable. Chris Himsworth Edinburgh February 2015

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1 Introduction

A A REMARKABLE TREATY ACHIEVES EUROPE-WIDE COVERAGE The autumn of 2013 saw the conjunction of two important events for the European Charter of Local Self-Government 1985 (‘the Charter’).1 On 1 September, the twenty-fifth anniversary of the Charter’s coming into force was celebrated.2 And, in October, there was further celebration of the extension of the Charter’s coverage to all the member states of the Council of Europe. On 16 May 2013, San Marino had signed the Charter and, on 29 October, notice of the country’s ratification was recorded.3 These celebrations were rather more subdued than that undertaken for the twentieth birthday of the making of the Charter at a conference in Lisbon in July 2005.4 But that was in line with the restraints imposed on the Council of Europe, the Charter’s parent organisation, by the global financial crisis rather than because of any loss of confidence in the standing of the Charter itself. The Council of Europe’s biggest and best-known contribution to international treaty-making has been in the area of human rights with the European Convention on Human Rights and Fundamental Freedoms (‘the echr’) adopted in 1950 but, in the Council’s other principal area of focus – the promotion of democracy – the Charter has been its highest-profile product.

  1. CETS 122. 1 2. The Charter was opened for signature on 15 October 1985. It took effect (following four ratifications) on 1 September 1988. 1 3. See https://wcd.coe.int/ViewDoc.jsp?id=2120453&Site=COE San Marino’s ratification took effect on 1 February 2014. Though this gave the Charter total coverage in terms of Council of Europe member states, there remain ‘gap’ areas. See 74–6 below. 1 4. See Congress Resolution 195 (2005) and accompanying Explanatory Memorandum. See also The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006).

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For the Council of Europe’s principal organ with a remit in this field – the Congress of Local and Regional Authorities of Europe (‘the Congress’) – its responsibilities for the Charter have been its prime concern. The monitoring functions of the Congress will be considered later in this book.5 But, from time to time in the life of the Charter, the Congress has stepped back from its routine work to publicise and to applaud its own broader contribution to local democracy. Significant Charter birthdays have been celebrated6 and international conferences have been held; other Congress-promoted events, with a national or regional focus, have also taken place;7 and, in recent years, the Congress has taken the lead in promoting an initiative in relation to the securing and protection of ‘regional democracy’ in parallel with the protection offered by the Charter at the local level.8 And, in these times of global financial crisis when the Congress has been compelled to reassess its priorities and refocus its resources, it is the monitoring of local and regional democracy that has been declared to be its highest priority.9 In the United Kingdom, the response to the Charter, at the level at least of the national government, has been far more restrained. Echoing, in some ways, the country’s record in the early years of the echr, United Kingdom representatives were closely involved in the negotiations that led to the promulgation of the Charter.10 But then, from the formal adoption of the Charter in 1985, successive Conservative governments to 1997 declined to sign and ratify the treaty. While believing that the United Kingdom was in compliance with the Charter, they took the view that it concerned matters more appropriate to regulation at the national level rather than by inter­ national treaty.11 On the arrival of the Labour government, following the    5. See Chapter 4.    6. See the conference held in Lisbon in July 2005. See Congress Resolution 195 (2005) and accompanying Explanatory Memorandum. See also The European Charter of Local Self-government – 20th Anniversary (Council of Europe, 2006). And, in October 2010, there was a round table within a Congress session on ‘A Charter for the future of our communities’. See http://www.coe.int/t/ congress/Sessions/19/charter_en.asp    7. For references to some such conferences and other events, see 97, 144 below.   8. See Chapter 7. The Charter is itself also capable of adoption to apply to regional bodies as well.    9 See Chapter 4 below.   10. See Chapter 2. See also G. Jones and J. Stewart, ‘Bringing the UK into Line with Europe’ (1988) LG Chronicle 17.   11. For a critical analysis of the government’s position, see G. Stoker, ‘The Response to the Principles Established in the European Charter of Local Self-Government by the Member States which have not Ratified it’, Proceedings of the Conference on the Occasion of the 10th Anniversary of the European Charter of Local Self-Government (Council of Europe, 1997), pp. 85–8.

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general election of May 1997, however, one of that government’s first acts was to sign the Charter; and ratification followed in 1998. In June 1999, the British Minister for Local Government and Housing, Hilary Armstrong MP, in a speech to the Congress12 offered warm support for the Council of Europe in its fiftieth anniversary year and to the Congress. Thereafter, Labour governments to 2010 maintained their support for the Charter, at least in international forums.13 Earlier the government had, at the time of establishing the arrangements for devolved government in Scotland and Wales, deliberately invoked the Charter to express the need for the devolved institutions – in particular, the Scottish Parliament which, from the start, would have almost total legislative powers in respect of local government – to observe the United Kingdom’s obligations under the Charter.14 On the other hand, the support of Labour governments for the Charter was not unqualified. From the start, the extension of the Charter’s benefits to Northern Ireland was denied, a position that is still maintained today.15 More broadly, the approach of successive governments has been to assert (rather defensively) both their belief that the United Kingdom is in full compliance with the Charter’s terms and their commitment to maintaining that position as an aspect of adherence to all the country’s international treaty obligations; but, at the same time, to stop well short of seeking to enhance the legal or constitutional status of the Charter within the domestic legal order.16 More recently, the United Kingdom was one of only a small group of major states that resisted the adoption of a Charter of Regional Democracy, favouring instead the route to the much weaker ‘Framework’ document produced in 2009.17 At an earlier point in the Charter’s life, the United Kingdom was not the only state to adopt a somewhat lukewarm approach. For a long time, it was a surprising feature of the Charter roll call that some states were notable absentees. Belgium signed the Charter in 1985 but ratified only in August 2004; France also signed in 1985 but did not ratify until January 2007; and Switzerland delayed signing until 2004 and ratified in February 2005. On the other hand, the same period was one in which, following the fall of the Berlin   12. See Congress paper CG/Inf(6)2, 17 June 1999.  13. The British government was also one of those that signed the Additional Protocol on Participation in 2009. See Chapter 3. For the approach adopted by the (Conservative–Liberal Democrat) Coalition government of 2010–15, see 162 below.   14. For discussion of this and of developments since 1999, see 152 below.   15. See 74, 117 below.   16. See 152–67 below.   17. See 172 below.

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Wall in 1989 and the subsequent political transformation of Central and Eastern Europe, membership of the Council of Europe expanded sharply and, with it, the number of adherents to the Charter and its obligations. Furthermore, many of those new states shortly sought accession to the European Union18 and, in ways to be discussed,19 that process of European Union accession gave the Council of Europe and the Charter a new signi­ ficance. Thus, with the United Kingdom, Belgium, France and Switzerland also wholly on board, there were grounds for a new Charter-based confidence in the Congress and the Council of Europe. The Charter’s stock has risen and is widely (but, it has to be said, rather uncritically) viewed as a ‘success’. At one level, this is wholly unsurprising. There is no reason to suggest that the level of uptake by member states is anything other than a ‘success’ in Council of Europe terms.20 Equally, there is no doubt that, at least in the states of Central and Eastern Europe, the Charter has played a role in the development of their institutions of government and their constitutional orders. There can be no obvious reason for any state which has chosen to adhere to the Charter to be publicly unsupportive of its purposes. Above all, the Council of Europe and Congress themselves have invested so heavily in the Charter that it would be extraordinary if they were anything other than wholly devoted to the Charter and to a continuing commitment to it. Standing back a little, however, the atmosphere of uncritical praise for the Charter is more surprising. It is not difficult to appreciate why the Charter might have achieved a symbolic stature. As a declaration of a shared commit­ ment to a democratic ideal – the health of democracy at the local level – it has the capacity to inspire. And no doubt the Charter was always intended to have a symbolic thrust of that sort. Like many international treaties, it opens with an ambitiously phrased preamble that recalls the Council of Europe’s commitment to a greater unity between its members for the purpose of safe­ guarding and realising the ideals and principles of their common heritage.21 But the Charter has always been intended to do more than that. It has to serve instrumental as well as merely symbolic ends. It purports to bind states to curb their own sovereignty in order to operationalise its demands – if necessary, by changing their constitutions, their laws and their governmental practice. This is ambitious and potentially intrusive stuff. At the most rudimentary level, the scope of the treaty and the language of the obligations it purports to impose have to be appropriate to the task. The treaty must   18. Russia, Ukraine, and Moldova and the states of the southern Caucasus are notable exceptions.   19. See 149 below.   20. See 171 below.   21. For the text of the preamble, see 31 below.

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apply with sufficient precision and particularity to define standards capable of application to individual states and yet with sufficient generality to accommodate the great variations of state law and tradition across the member states of the Council of Europe. The treaty must also contain within it (or have the capacity to invoke) a mechanism for its implementation and enforcement if it is to achieve the necessary degree of credibility and effectiveness. Plainly, the Charter’s own terms, together with the institutions and procedures it establishes, do bear closely upon its capacity to achieve the objectives that it proclaims. As the discussion in the chapters which follow demonstrates, there are many reasons to be sceptical about that capacity. Nor should that, in itself, be surprising. For one thing, states (which are, after all, the authors of the Charter as well as the subjects of the Charter’s obligations, but also its ultimate guardians) are generally reluctant to accept significant external regulation of their own institutions of government. The Charter’s principal claim to intrude upon the management of relationships between central (and provincial and regional) government and local government sharply challenges that sensitivity. The Charter may be the only treaty document that seeks to impose international standards of local selfgovernment.22 It is extraordinary in seeking to regulate governmental structures and their interrelationships. The odds are against success. Nor is this merely a question of possible governmental hostility to the Charter’s purposes. There is always a serious question to be posed about the capacity of law to intervene ambitiously to effect social or political change on the ground. This is the case at the level of domestic legislation and the question arises even more acutely in relation to supranational or international measures. In particular, confidence in the declaration of the ‘rights’ of individuals in the expectation of changes to the benefit of those individuals has often been misplaced. Almost inevitably, the high expectations attached to bills of rights tend, for a variety of reasons, to be unrealised in practice. How much more improbable is the success of a declaration of the ‘rights’ of local authorities? These are the questions this book seeks to address. Though it engages with the Charter at large, a specifically British perspective is also adopted at appropriate points. B TERMINOLOGY It will be observed that the Charter speaks, in both its own title and in its text, of ‘local self-government’. To British-based English-language speakers, this   22. The Charter’s own Explanatory Report declared it to be ‘the first multilateral legal instrument to define and safeguard the principles of local autonomy’.

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terminology may seem unduly cumbersome. For them, the language simply of ‘local government’ – the terminology of both statute and common parlance for generations – may appear to capture the ideas both of local democracy and of local autonomy23 which the Charter also seeks to embody. The notion of ‘self-government’ seems to be superfluous in English and it may be a matter of regret that the language of ‘autonomy’24 which appears as ‘autonomie locale’ in the French language text of the Charter was not also used in the English text.25 But ‘local autonomy’ (which might itself have given rise to some confusion) was not adopted. And evidently, the simple form of ‘local government’ was felt to be potentially ambiguous and in danger of incorporating an impression of local government that might legitimately embrace both the democratic and autonomous form but also other forms of distinctly nonautonomous or non-democratic local administration. Those might simply be deconcentrated elements of the central government. At all events, the language of ‘local self-government’ is the language of the Charter and is, as a result, routinely used in this book – though, where a United Kingdom context is evident, the formula ‘local government’ is also deployed at some points. C THE CHARTER OF LOCAL SELF-GOVERNMENT The terms of the Charter will be explained and analysed at later points in the book but it will be helpful at this stage to mention its principal characteristics. In the words of its Explanatory Report, the Charter’s purpose was . . . to make good the lack of common European standards for measuring and safeguarding the rights of local authorities, which are closest to the citizen and give him the opportunity of participating effectively in the making of decisions affecting his everyday environment. The Charter commits the parties to applying basic rules guaranteeing the political, administrative and financial independence of local authorities. It is thus a demonstration, at the European level, of the political will to give substance at all levels of territorial administration to the principles defended since its foundation by the Council of Europe, which considers its function to be the keeping of Europe’s democratic conscience and the defence of human rights in the widest sense.   23. For discussion of possible tensions between the two concepts, see L. Pratchett, ‘Local Autonomy, Local Democracy and the ‘New Localism’ (2004) 52 Political Studies, p. 358.  24. For a magisterial treatment of substate ‘autonomy’, if principally in a regional context, see M. Suksi, Sub-State Governance through Territorial Autonomy: A Comparative Study in Constitutional Law of Powers, Procedures and Institutions (Springer, 2011).   25. Though ‘autonomy’ is referred to at one point in the preamble.

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Indeed, it embodies the conviction that the degree of self-government enjoyed by local authorities may be regarded as a touchstone of genuine democracy.

The preamble to the Charter recites, among other things, that local authorities are among the main foundations of any democratic regime and that local self-government ‘entails the existence of local authorities endowed with democratically constituted decision-making bodies and possessing a wide degree of autonomy with regard to their responsibilities, the ways and means by which those responsibilities are exercised and the resources required for their fulfillment’. The Charter itself is in three parts. Part I contains the substantive obligations imposed on the state parties. The principle of local selfgovernment must be recognised in domestic legislation and, where practicable, in the constitution (Article 2). Local self-government denotes the right and ability of local authorities to regulate and manage a substantial share of public affairs – a right to be exercised by directly elected councils (Article 3). The Charter further addresses the extent of the powers and responsibilities of local authorities, and insists on their consultation (Article 4), the protection of their boundaries (Article 5), the need for appropriate administrative resources (Article 6), a guarantee of conditions for the free exercise of the functions of local authorities (Article 7), restrictions on the control or supervision of local authorities by central government (Article 8), and, very importantly, an assurance of adequate financial resources (Article 9). Local authorities must have the right to associate with one another in various ways (Article 10), and must be entitled to judicial remedies for their protection (Article 11). Part II of the Charter contains important provisions regulating the extent to which individual states may commit to the Charter’s terms.26 Part III contains standard treaty terms dealing with procedures for signature, ratification, denunciation and so on. Article 18 provides for the authenticity of both the English and French texts of the Charter. D THE COUNCIL OF EUROPE The Charter is a Council of Europe treaty. It was drafted and adopted under the auspices of the Council. It is open to signature and ratification only by member states of the Council of Europe.27 It has been made the subject of an   26. See 69 below.   27. Though this is not an inevitable feature of Council of Europe treaties and the possibility of extending the scope of the Charter beyond member states has been considered. See 77–9 below.

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additional protocol by a further Council of Europe process.28 As a result, state parties to the Charter are subject to a degree of scrutiny by institutions of the Council of Europe,29 and it may, therefore, be useful to insert a brief note at this point on the Council of Europe itself.30 The Council of Europe is a treaty-based organisation which was founded in 1949 under the Treaty of London – the Statute of the Council of Europe. It is based in Strasbourg. Its original membership of ten (Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom)31 has expanded to a membership today of forty-seven including, prominently, all those states (among them, Russia itself) that qualified to apply in the period since the fall of the Berlin Wall in 1989. Initially reflecting the poignant concerns of the post-World War II period, the treaty commitments of the Council of Europe are to human rights, democracy and the rule of law32 and, from its origins up to the present day, the Council’s most prominent institution has been the European Court of Human Rights, in its application of the standards deriving from the European Convention on Human Rights, to which all Council of Europe member states are parties. The overall scope of Council of Europe activities extends much more widely, however, and other conventions reflect that broad range. Apart from the Charter of Local Self-Government itself, these have included the European Social Charter,33 the European Cultural Convention,34 the Framework Convention for the Protection of National Minorities,35 and the European Charter for Regional or Minority Languages,36 and many others.37 Institutionally, the principal decision-making body of the Council of Europe is the Committee of Ministers which formally comprises the foreign ministers of all member states or their Strasbourg-based permanent   28. See 81–3 below.   29. See Chapter 4 below.   30. For much fuller discussion, see for example, M. Bond, The Council of Europe – Structure, History and Issues in European Politics (Routledge, 2011). See also B. Wassenberg, History of the Council of Europe (Council of Europe, 2013).   31. Other early members joining during 1949–50 were (the Federal Republic of) Germany, Greece, Iceland and Turkey.   32. The values identified in the preamble to the Statute of the Council of Europe are ‘individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy’.   33. 1962 and revised 1996.  34. 1954.  35. 1995.  36. 1992.   37. Recently a review has been carried out within the Council of Europe of its treaties. See 171 below.

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representatives.38 Also meeting from time to time are ‘conferences’ of national ministers drawn from different sectors of Council of Europe activity. Relevant to the subject matter of this book are the Conferences of Ministers for Local and Regional Government. The principal deliberative body is the Council’s Parliamentary Assembly39 which consists of Members of Parliament from all member states. Other treaty-based institutions include the European Court of Human Rights and the secretary general who heads a permanent secretariat which is divided into sectoral directorates. Some other Council of Europe institutions have been created by resolution of the Committee of Ministers. These include the Conference of International Non-governmental Organisations (ingos), the Commissioner for Human Rights, the European Commission for Democracy through Law (the Venice Commission which acts as the Council’s advisory body on constitutional matters) and, most prominently for present purposes, the Congress of Local and Regional Authorities. E THE CONGRESS OF LOCAL AND REGIONAL AUTHORITIES – ‘THE VOICE OF CITIES AND REGIONS’40 Originally established in 195741 as the Conference of Local Authorities of Europe and then re-established first as the Conference of Local and Regional Authorities of Europe in 1975, then as the Standing Conference of Local and Regional Authorities of Europe in 1979, and then, from 1994, in its present name, the Congress derives its current constitution from a Statutory Resolution of the Committee of Ministers of 201142 to which is appended the Congress’s own Charter.43 The resolution and Charter set out the purpose, membership and activities of the Congress and authorise it to adopt its own   38. The permanent representatives meet as the Ministers’ Deputies.   39. Originally (and still formally in the statute) known as the Consultative Assembly.   40. The terminology of the Congress’s own website. http://www.coe.int/t/congress/activities/governments/default_en.asp? mytabsmenu=3 It is curiously non-inclusive – of all the categories of local authority other than cities. The French version ‘villes’ is perhaps to be preferred, though even that seems to exclude representation of the rural populations of Europe.   41. For a rather fuller history, see 50 Years of Local Democracy in Europe (Council of Europe, 2007). See also 20 Years of the Congress, 1994–2014 (Council of Europe, 2014). And see Chapter 2 below. The struggle for the creation of the Congress and the continuing tensions in its relationship with the Committee of Ministers have been important aspects of the Charter’s history and current status. See 180 below.   42. CM/Res(2011)2.   43. Not to be confused with the Charter of Local Self-Government itself.

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Rules of Procedure. The Congress is defined primarily as a consultative body44 but, in addition, Article 2 of the statute provides for other activities: 1. The Congress, in addition to its consultative functions, furthermore undertakes activities the aims of which shall be: a. to ensure the participation of local and regional authorities in the implementation of the ideal of European unity, as defined in Article 1 of the Statute of the Council of Europe, as well as their representation and active involvement in the Council of Europe’s work; b. to submit proposals to the Committee of Ministers in order to promote local and regional democracy; c. to promote co-operation between local and regional authorities; d. to maintain, within the sphere of its responsibilities, contact with international organisations as part of the general external relations policy of the Council of Europe; e. to work in close co-operation, on the one hand with the national, democratic associations of local and regional authorities, and, on the other hand, with the European organisations representing local and regional authorities of the member states of the Council of Europe, and notably with the Committee of the Regions of the European Union. The Congress is to be ‘composed of representatives of local and regional bodies who either hold a general local or regional authority mandate resulting from direct elections or are politically accountable to a directly elected assembly, on the condition that they can be individually dismissed by, or following the decision of the aforementioned assembly and that dismissal is provided for by law’.45 The number of seats allocated to each member state is defined by reference to its representation in the Parliamentary Assembly and the membership of each delegation (and their substitutes) must ensure: a. a balanced geographical distribution of members from the member state’s territory; b. equitable representation of the various types of local and regional authorities in the member state; c. equitable representation of the various political forces in the statutory bodies of local and regional authorities in the member state; d. equitable representation of women and men on the statutory bodies of local and regional authorities in the member state, meaning that all delegations must include members of both sexes with a minimum participation of at least

  44. CM/Res(2001)2 Article 1.   45. The requirement of direct electoral/political accountability is important and has given rise to questions of eligibility. These are for resolution by the Congress itself which takes advice from its bureau.

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30 per cent of the underrepresented sex among the representatives and among the substitutes. The Congress operates through plenary sessions held twice annually and comprises two chambers – Local and Regional.46 For the United Kingdom, representation in the Congress consists of nine members of the Local Chamber (one Scottish councillor, one from Northern Ireland47 and all others from English councils) with nine substitutes (including one each from Scotland and Wales), and nine members of the Regional Chamber (mainly from English County Councils48 but with one from the Greater London Assembly and one each from the Scottish Parliament and the National Assembly of Wales) and nine substitutes. Each chamber has a bureau as its administrative and organising body and the two bureaux combined plus the Congress president form the Congress’s own bureau. There is also a statutory forum (which may act on behalf of the Congress between sessions) and the Congress also appoints other committees and working groups. Very important among Congress committees (the others are the Governance Committee and the Current Affairs Committee) is its Monitoring Committee which has the lead responsibility for the Congress’s Charter-related functions.49 Also important for the   46. Special rules apply to define membership of the regional chamber. For Congress purposes, regional authorities are those ‘placed between central government and local authorities and enjoying prerogatives either of self-organisation or of a type normally associated with the central authority and having a genuine competence to manage, on their own responsibility and in the interests of their populations, a substantial share of public affairs, in accordance with the principle of subsidiarity. If a country has authorities which cover a large area and exercise both local and regional responsibilities, representatives of such authorities shall also be entitled to sit in the Chamber of Regions. A list of these authorities shall be provided in the context of the national appointment procedure. Member states which do not have regional authorities within the meaning of this paragraph shall be able to send members to the Chamber of Regions and its organs in an advisory capacity. The list of these countries shall be determined by the Bureau of the Congress on the proposal of the Governance Committee of the Congress, following consultation of the national delegations.’ (Charter Article 4.) In practice, all states have an equal number of local and regional representatives – which is both a curiosity, given the practical absence of true regions in many states, and also sharply anomalous when it comes to representation on Charter monitoring exercises. See 105 below.   47. Despite (or perhaps in defiance of) the fact that the (local) Charter does not extend to Northern Ireland. See 74 below.   48. Some members of the Regional Chamber are from unitary authorities, i.e. the most ‘local’ local authority in their areas, which seems an oddity.   49. See Chapter 6.

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discharge of those functions is the Congress’s Group of Independent Experts on the Charter.50 Another feature of the Council of Europe’s organisation which is very important to the work of the Congress is that the Congress is not alone in representing Council of Europe concern for local and regional democracy. That responsibility is split between, on the one hand, the Congress itself, an institution directly representative of the elected councils and assemblies of Europe, and, on the other hand, a section of the intergovernmental structure of the Council of Europe which is directly responsible to the Committee of Ministers. That structure embraces responsibilities right across the Council’s spheres of interest (including human rights, social cohesion and education), and an important component is the Directorate General of Democracy and, within that, the Directorate of Democratic Governance, Culture and Diversity. The portfolio of that directorate includes a responsibility for local and regional democracy represented by the Democracy, Institution-building and Governance Department. Key to the operation of that department is the European Committee on Local and Regional Democracy (the cdlr)51 which was first established in 196752 and consists of senior representatives of the relevant government departments of member states. Their task is to provide advice to the Committee of Ministers and to organise, roughly every two years, a meeting of a Conference of Ministers with local and regional responsibilities. The cdlr prepares texts for adoption by the Committee of Ministers and by the ministerial conferences. From this account of their responsibilities, it will be obvious that there is an inevitable overlap between the work of the Congress and the cdlr and, indeed, it is one part of the cdlr’s remit to advise the Committee (and conferences) of Ministers on proposals originating in the Congress but requiring to be adopted, prior to implementation, at the ministerial level in the Council of Europe. This was the case in relation to the process leading to the adoption of the Charter itself53 and the preparation of draft protocols to the Charter.54 The cdlr was also closely involved in Congress-attempted initiatives to expand the scope of the Charter to other countries55 and to adopt a Charter of Regional Self-Government.56 Because the Congress represents directly the   50. See 103 below.   51. Le Comité européen sur la Démocratie Locale et Régionale.    52. It was initially known as the Steering Committee for Regional and Municipal Matters (cdrm) and changed its name twice thereafter before emerging with its present name.   53. See 28 below.   54. See 78 below.   55. See 79 below.   56. See 175 below.

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local and regional sector, and the cdlr and the directorate within which it operates represent the intergovernmental interest in local and regional government, their interests overlap but also tend to conflict. Despite their shared attachment to democracy, the two institutions diverge over the means by which democracy is to be secured and especially over how autonomy at local and regional levels – the cornerstone of the Charter’s guarantees – is to be implemented. This has led to a degree of discord over the years which has become especially evident in this current period of financial crisis and reform in the Council of Europe.57 F THIS BOOK – AN OUTLINE The purpose of this book is to provide an assessment of the contribution that the Charter of Local Self-Government has made, both to the state of European local government itself but also as an extraordinary treaty in its own right and as a component in the changing relationships of European international institutions – both within the Council of Europe and between the Council and the European Union. Those assessments are made principally in Chapters 6 and 7 and followed, in the concluding Chapter 8, with an analysis that treats the Charter as a barometer of post-war conditions in Europe and casts a forward glance to examine possible Charter futures. To lay the groundwork, Chapter 2 provides a brief history of the Charter’s adoption; Chapter 3 analyses the Charter’s content and its coverage (including its Additional Protocol) and Chapters 4 and 5 provide an account of the distinctive institutions and procedures of Charter monitoring.

  57. See Chapters 7 and 8 below.

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2 Charter Origins

A INTRODUCTION The European Charter of Local Self-Government was opened for signature on 15 October 1985 but the process which led to that launch had begun much earlier. The Charter is a product of a dynamic within which, in the aftermath of World War II, European elites committed themselves to a rejection of all that had caused such chaos, destruction and loss of life in the previous decades and to the adoption of a new way forward. It was a period of commitment (or of recommitment) to democracy and human rights. The Charter was a child of those times. But the Charter was not written on a clean slate. Its origins drew on the historical fact of the existence of systems of local government, as evidenced by all the municipalities and other forms of local authority, across Europe – a phenomenon recognised in the preamble to the Charter itself which recites that ‘local authorities are one of the main foundations of any democratic regime’ and that ‘the right of citizens to participate in the conduct of public affairs is one of the democratic principles that are shared by all member states of the Council of Europe’.1 Such local government had not, of course, in its origins been democratic but, by the twentieth century, a democratic basis had been broadly established, even if democracy might, in its liberal form, have been periodically eclipsed – notably in Western Europe prior to and during World War II, and in Central and Eastern Europe thereafter. In many countries, the phenomenon of local self-government achieved constitutional or special legal recognition but elsewhere, and even in a country such as the United Kingdom, it was accorded a legitimacy that attracted a normative status.2   1. A valuable perspective on this tradition is to be found in the explanatory memorandum which accompanied the draft resolution (and draft Charter) which formally launched the production of the Charter text in October 1981[CPL(16)6]. 1  2. See H. Laski, I. Jennings and W. Robson (eds), A Century of Municipal Progress, 1835–1935 (George Allen & Unwin, 1935). But see also a successor volume:

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Local self-government not only exists but ought to continue to exist. There might be no ultimate constitutional protection for local self-govern­ment and certainly not for any particular form of local self-government – in the United Kingdom it was (and is) comfortably within the formal competence of the sovereign Parliament to reorganise and even to abolish local government – but it was recognised nevertheless that local self-govern­ment had a strong claim to survive. This did not prevent tensions between central and local government which, given the former’s superior access to legislative power, would routinely lead to incursions trespassing upon local democracy but there was a strong sense that local government should nevertheless retain a role. In many countries, indeed, local self-government had a longer and stronger institutional pedigree than central government itself – especially in those countries which were themselves of relatively recent creation as states. Nor was the status of local government secured exclusively (or even mainly) on the basis of its democratic credentials. Despite wide variations of practice across the different European states, local authorities had taken on many tasks and much service delivery within their areas, not on the basis of a superior claim to democratic control of such services but rather on grounds of economy and efficiency deriving from their local organisation and under­ standing. To this degree, central governments were content to accept and respect the administrative contribution which local authorities made. What the post-World War II period brought to these long-established (but, in many cases, interrupted) traditions was the quest for a general statement of the criteria of autonomy for local government and the recasting of those criteria in a form capable of adoption by participating states as legal obligations binding upon them. This requires a focus on the contribution of the Council of Europe. As we shall see, the exact form and status of that general statement were, for some time, open questions. The obligations might have been adopted in an international convention or treaty or they might, instead, have been contained simply in a form of declaration to which participating states might subscribe. B THE VERSAILLES CHARTER The Charter’s own Explanatory Report provides an outline of the background history of the Charter’s origins within the institutions of the Council of

M. Loughlin, M. D. Gelfand and K. Young (eds), Half a Century of Municipal Decline 1935–1985 (George Allen & Unwin, 1985) to which Professor John Griffith wrote a valuable foreword in which he asserted the (politically) constitutional status of local government.

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Europe, starting with the Council’s demonstration of ‘its appreciation of the importance of local authorities by establishing for them a representative body at European level which has since become the Standing Conference of Local and Regional Authorities of Europe’.3 It is often the case, however, that the origins of the modern Charter are traced back to an earlier Charter created under the auspices of a different institution, the European Municipal Assembly, in Versailles in October 1953.4 This was the ‘European Charter of Municipalities’ and the story of that earlier Charter was told by the great Professor Edgard Milhaud of the University of Geneva.5 He recalls that three years earlier, on 1 October 1950, six people had met in the Swiss hamlet of Seelisberg to adopt what became known as the Seelisberg Declaration.6 The six had included French, Germans and Swiss – some, wrote Milhaud, were mayors and others were municipal enthusiasts. Their political opinions? Nobody bothered about them! But one conviction they held in common: that in a Europe torn and tested by two great wars, the municipalities could and should be an incomparably powerful factor of reconciliation, cooperation, economic and social progress and peace – peace in liberty and peace in justice.7

The Seelisberg Declaration itself constituted a plan of action to create the Council of European Municipalities and helpful in the direction of achieving that aim was the Second Session of the Parliamentary Assembly of the Council of Europe in Strasbourg in November 1950 when some of the    3. For the evolution of the name of the Congress, see 9 above. 1  4. Much later, the two charters were joined in a combined ceremony. In November 2013, the sixtieth anniversary of the Charter of Municipalities and the twentyfifth anniversary of the European Charter of Local Self-Government were celebrated in Strasbourg. See http://www.coe.int/t/congress/newssearch/Default _en.asp?p=nwz&id=7310&lmLangue=1 1  5. ‘From Seelisberg to Versailles: The European Municipal Assembly and the European Charter of Municipal Liberties’ (1953) 24 Annals of Collective Economy 261. The article includes the full text of the 1953 Charter. For more recent references to this history, see Professor R. Hertzog, ‘La Charte européenne de l’autonomie locale à 25 ans: une vie richement remplie’, 26 October 2010, at https://wcd.coe.int/ViewDoc.jsp?id=1690037&Site=COE And J. Smith in The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006) p. 27. 1  6. See E. Milhaud, ‘For the creation of a Council of European Municipalities: The Seelisberg Declaration’, (1950) 21 Annals of Collective Economy 395. See also E. Milhaud, ‘The Council of European Municipalities has been Founded’ (1950) 21 Annals of Collective Economy 398. 1  7. (1953) 24 Annals 261 at 263.

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Seelisberg Six were able to advertise their project. This led to a meeting of a Constituent Assembly in Geneva in January 1951, with sixty representatives of nine European states.8 The assembly adopted the Statute of the Council of European Municipalities – the first aim of which was ‘to achieve and defend municipal autonomy’. Also included was an aim ‘to develop a European outlook within the municipalities and local communities with a view to promoting a federation of European states, based on the municipal autonomy of those communities’. Milhaud went on to summarise the early (hugely vigorous) work of the Council and its committees which rapidly built up a membership of twenty thousand European municipalities. But it was the Council’s executive committee and its officers that developed the idea of the Charter – eventually adopted at Versailles in 1953. Milhaud records that a Mr Pike, as honorary president of the British Committee of the International Union of Local Authorities, issued a supportive declaration on the eve of the assembly meeting.9 The European Charter of Municipalities was a bold document, in three parts. The first, the preamble, declared a commitment to a ‘free and peaceful Europe’; proposed to formulate the rights of municipalities ‘founded on thousand-year-old traditions and on human liberty and dignity’; noted that these rights were in jeopardy and ‘even suppressed in certain places’; and voiced the Council’s commitment to defending the rights and ‘to lend its authority to any municipality which is fighting for its liberties’. Secondly, the Charter set out the ‘Conditions for Municipal Liberties’, the first of which was that ‘[m]unicipalities must come to realise that they are the very foundation of the nation’. ‘Genuine municipal liberty can exist only if the citizens are firmly resolved to safeguard their local self-government.’ Citizens must take responsibility for obeying the law but also ‘for refusing to comply either personally or collectively with illegal orders’. The law must ‘safeguard the right of the local community vis-à-vis superior authorities. Likewise, the right of the citizen shall be safeguarded within the community itself.’ The text clearly demonstrates its authors’ concerns about the effect of conditions prevalent across much of Europe in the immediately preceding decades. Part III of the Charter contained a ‘Definition of Municipal Liberties’. In the light of later developments leading to the eventual adoption of the Council of Europe’s Charter, it is instructive to set these out in full:

   8. Including, at that time, the Saar. The others were Belgium, Denmark, France, Germany, Holland, Italy, Luxembourg and Switzerland.    9. (1953) 24 Annals 261 at 268.

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Definition of Municipal Liberties Municipal liberties must be defined by the Constitution, and guaranteed through the right of recourse to independent judicial organs. Draft laws regulating the organisation of local authorities must, save in case of emergency declared by Parliament, be submitted to the prior opinion of a legal representative of the municipalities concerned. The exercise of every function of municipal interest belongs to the munici­ pality itself. Within the framework of the law, its representatives themselves determine the rules to be applied. In the case of powers delegated by the State, there should be scope for adapting the execution of general laws to local circumstances. Municipalities have the right to create their own resources, by voting local taxes that are sufficient to cover the costs of their administration, as well as all expenses necessary to meet the needs of their inhabitants. A system of compensation between municipalities shall be established, which will have effect in case of proven inadequacy of resources, without imposing any constraint on the free management of the municipality. The power of decision in relation to municipal affairs, the approval and use of the financial means, belong to the citizens of the municipality, or to their representatives. The same applies, within the framework of the relevant legal provisions, to the recruitment, remuneration and promotion of the Council’s employees, as well as the disciplinary measures that concern them. Those holding executive office as managers on behalf of the municipality are accountable for the exercise of their functions before the inhabitants of the local community. The latter may, through due legal process, challenge the office-holders’ management before the competent jurisdiction. Only the conformity of municipal decisions with the law may be submitted to an administrative control. Any such control is to be exercised through independent bodies, which, in cases prescribed by law, can demand a new deliberation. The territory of a municipality should not be altered without a legal procedure, which involves the consultation of the populations concerned. Municipalities and associations of municipalities have the right to belong to international organisations in order to promote the defence of their interests and their rights, in accordance with the fundamental principles of this Charter.

It is striking how far these provisions – on constitutional guarantees and legal protection; consultation; freedom of action; access to revenue; internal organisation; government supervision; territorial change; and rights to associate internationally – are the evident predecessors in spirit, if not in the exact

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language used, of the present Charter. The Versailles Charter was clearly a product of its immediately post-war times in its underlying aspirations for European peace and for reconstruction but it was also a response to newly emerging concerns about the treatment of local authorities of the time. A revealing insight into the condition of local democracy in France, for instance, and of hopes for the European Municipal Assembly and the Municipal Charter was provided by Edouard Herriot (president of the French National Assembly).10 He referred to the municipality as ‘the very life-cell of society’ but municipal liberties were, he said, ‘being steadily whittled away’. ‘Centralization, insidiously or ruthlessly’ was ‘transforming the elected members of local governments into mere officials’. At all events, Milhaud recorded that eight thousand mayors were present in Versailles for the adoption of the Charter of Municipal Liberties, representing municipalities, or groups thereof, from sixteen European countries. In a postscript to his article11 he claimed that the number of municipalities affiliated to the Council, which had been 20,000 at the time of Versailles, had already risen to 44,000. C THE EMERGENCE OF THE COUNCIL OF EUROPE’S CHARTER Moving on to developments within the Council of Europe itself, the first event of note was the adoption in January 1957 by the then Conference of Local Authorities of Europe of Opinion No. 6 on the Protection and Development of Local Autonomy.12 Nearly thirty years before the eventual adoption of the Charter itself, this document is significant for its articulation of principles of local autonomy. These were, however, prefaced by a number of preambulatory clauses that provide a useful backdrop to the principles themselves. One restated the case for limiting the document to laying down ‘certain broad principles’. This was an acknowledgement of the ‘great variety of types of municipal and regional authorities existing in the countries represented’ – deriving from ‘the facts of history, the different traditions and constitutions of each country, the various changes that they have seen and the differences in the origins of the various local authorities’. There were different conceptions as to the best means of ensuring local autonomy, though general agreement on the principle of autonomy itself. When it came to the elaboration of the core principles, these do, in the main, reflect those that were eventually carried forward into the Charter – the   10. ‘The European Municipal Assembly meets at Versailles’ (1953) 24 Annals of Collective Economy 258.   11. (1953) 24 Annals 261at 270.   12. See Document CPL(1)10 of 14 January 1957.

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rights of local and regional authorities vis-à-vis higher authorities need to be safeguarded; municipal and regional liberties need to be laid down in the constitution and guaranteed by access to an independent court; all functions which directly concern local communities should be exercised by local authorities; administrative controls should be confined to verifying legality; local authorities should be responsible for the employment of their own personnel; the territorial limits of authorities should not be altered except by due process of law and after consultation of the affected inhabitants; and local authorities and their associations should be free to join international organisations. Three features of the text of these principles attract comment: 1. On financial resources, it is declared that local authorities should be enabled to carry out their functions by means of rates or taxes levied on their inhabitants. It is only if those are insufficient to cover essential or necessary expenditure that the extra amount required should be made up by means of a ‘compensation fund’. That formula seems to describe a pre-eminence for locally raised revenues that was thought by the later architects of the Charter to be unattainable.13 2. There is an interesting ‘principle’ to cover the situation where a general state of emergency is declared. In such circumstances, any draft legislation concerning the general organisation of local authorities should be ‘submitted to a legal representative of the local and regional authorities for his opinion’ – not a very powerful protection but one presumably devised with a view to preserving local democratic rights, even at a time when national liberties were to be surrendered to a higher cause. 3. Although a democratic underpinning for local authorities is an important strand in the Charter planning that follows later, there is a much higher commitment, in these ‘principles’ of 1957, to a partner­ ship between not only the rights of local authorities but also the rights of citizens. The first principle emphasises those latter rights and the obligation of local authorities to provide the means for citizen contri­ bution to the development of local democracy. Another principle likewise refers to the people’s determination to administer their own affairs and to preserve their liberties against all totalitarian principles. Another combines the need for the rights of local authorities to be protected, as above, vis-à-vis higher authorities with the safeguarding of the rights of the individual citizen vis-à-vis the local authorities themselves. And another insists on the responsibility of municipal   13. See 58 below.

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and regional authorities to the local community – ‘local inhabitants should have the right to sue the local authorities by legal methods in the appropriate courts’. In due course, this Opinion of the Conference was called in aid in a Recommendation of the Parliamentary Assembly14 on the protection and development of local autonomy. This seems to have been an opportunistic response to the fact that a Second Protocol to the European Convention on Human Rights was being drafted at the time.15 The document recited the belief of the assembly that ‘local autonomy represents the most ancient and solid basis of the political structure and fundamental freedoms of European civilization’; that ‘local authorities have an essential contribution to make to the proper functions of the democratic State, and can make that contribution only if they are given a large measure of autonomy’; and that ‘it is desirable that the member states of the Council of Europe should undertake legal obligations for the protection and development of local autonomy’. Thus, they recommended to the Committee of Ministers that it should instruct the inclusion in the proposed Second Protocol of two new articles based on the following draft: 1. The High Contracting Parties undertake that local communities shall have the right to be governed freely by their elected representatives; the form of local government and the rights and duties of local authorities shall be determined by law and safeguarded by an effective remedy before a national authority. 2. The local authorities shall have their own financial resources and shall receive from the State out of the general revenue such additional resources as they need to meet the expenditure which they have to bear in the general interest.

That initiative was itself unsuccessful but it may have an interest in the evolution of the Charter story because of its focus on guaranteeing the rights of local authorities (to match those of the echr) rather than the encap­ sulation of broader principles of local autonomy embracing also citizen participation – an approach carried forward into the Charter itself.16 At all events, the Parliamentary Assembly returned to the fray in 1970 with its recommendation on the ‘Declaration of Principles of Local Autonomy’.17  14. Recommendation 295 (1961). For the transition from Consultative to Parliamentary Assembly see 9 above.   15. The Second Protocol was eventually adopted in 1963.   16. But see 81 for the additional protocol.   17. Recommendation 615.

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This declaration was the fruit of a joint drafting exercise18 undertaken by the European Conference of Local Authorities and the Council of Europe’s (then) Committee on Regional Planning and Local Authorities. The recommendation recited the assembly’s conviction that ‘European Society is developing towards an ever acuter appreciation of the essential role of the basic units of society and towards an ever more active participation of those units in the management of national and international affairs’; and its belief that ‘governments have a duty to recognise this profound aspiration of the basic units of which our Member states are composed’. The content of the declaration is described as the minimum which the two drafting bodies had accepted, in the hope of obtaining the agreement of all member governments. The Declaration of Principles, because of the degree to which its content presages later developments, bears quotation in full: 1. The autonomy of the local communities is the right of those communities to manage under their own responsibility their own affairs through freely elected assemblies; 2. The principle of local autonomy shall be embodied in the Constitution of each State; 3. To safeguard their autonomy, local communities shall be allowed such form of organisation as will enable them to meet the requirements of the population to the extent provided by their powers; 4. Local communities shall have the right to associate with each other for any purpose serving their common interests; 5. Any measures affecting local interests shall be taken by the local authorities in preference to the authorities of larger communities; 6. Any proposal seriously affecting the future of a local community shall be referred to that community or its representatives for a prior opinion; 7. The activities of local communities in the exercise of their powers shall be subject only to the control of law; 8. Autonomy implies that local communities shall have the free disposal of their own financial resources distinct from those of the State; 9. The allocation of resources to local government and their distribution amongst the local communities shall be in proportion to the tasks assumed by those communities.   18. Following an earlier Assembly Resolution 410 (1969) approving principles contained in Resolution 64 (1968) of the European Conference of Local Authorities.

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The recommendation did not, however, receive a positive reception from the Committee of Ministers. The Charter’s Explanatory Report describes the proposed declaration ‘as of a rather too general and sweeping character for any firm action to be taken on it’. The response of the Standing Conference of Local and Regional Authorities was to adopt what the Explanatory Report describes as a ‘more flexible approach’. On the other hand, if flexibility might be interpreted as weakness, the conference also considered that the time for non-binding declarations of principles had passed and that, instead, governments should be asked to enter into binding commitments. The conference instructed its Committee on Local Structures and Finance to prepare a report on a possible European Charter of Local Self-Government, with Mr Lucien Harmegnies, a former Belgian Minister of the Interior, as rapporteur.19 His task was to draft a Charter with the assistance of a group of independent consultants consisting of university professors and other experts.20 The result was a preliminary draft Charter21 for submission to national and international associations of local authorities for their opinions on it and then to the committee itself. In a preliminary note on the draft, the rapporteur explained that to take account of the problems posed by the differences in the systems of local government in force in the various member states and to make the draft Charter more acceptable to national governments, the group of consultants took up the idea of a text containing a nucleus of principles with which every contracting party must comply and additional provisions amongst which each would specify a minimum number by which it would consider itself bound. As a degree of flexibility is thus introduced with regard to the commitments to be entered into by governments, it is not necessary that every paragraph of   19. For a tribute to the contribution of Mr Harmegnies, see P. Blair in The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006) p. 33. At the same point, Mr Blair claims that it was he, as the then secretary to the Committee on Local Structures and Finance of the Conference, who suggested to Mr Harmegnies that ‘the time was ripe for an ambitious European project which, while building on previous initiatives, was in fact quite different from them: the idea was to create a common European yardstick against which the state of local government could be measured, but above all a yardstick accepted by the member states as legally binding’. He also writes of the full support for the project of Rinaldo Locatelli, the recently appointed executive secretary of the conference – despite the scepticism of his own boss whose position, he says, was: ‘I don’t believe in it, but I wish you luck!’  20. The group of seven included Professor J.-M. Woehrling from France and Professor B. Keith-Lucas from the United Kingdom, and others from Belgium, the Federal Republic of Germany, Italy and Switzerland.   21. CPL/Loc(15) 7 (27 February 1981).

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the preliminary draft Charter should be equally applicable to every member state.22

The consulted associations were invited to comment on the draft generally but also, in particular, on which elements in the Charter should be compulsory and which optional. In the case of some articles in the draft, both shorter and longer versions were offered – with the suggestion that the choice was presented between short but general texts which might attract broad approval and, on the other hand, longer and more detailed texts but with the oppor­ tunity for states ‘for the time being’ to make a selection within the range of obligations specified. The model of the European Social Charter was invoked.23 There was also a request for consultees to propose ‘any modifications which would be desirable to enable the text to take account of the particular situation in their country’. This reflects a willingness (subject, no doubt, to some limits) to accommodate within a framework of principle the actual practice in states, a privilege available to the Charter’s founders but not to those states ratifying and joining the family at a later time. As to its content, the preliminary draft under consideration was already beginning to take the form of the Charter eventually adopted. The Preamble was much shorter. The provisions made for the concept of local self-govern­ ment, for constitutional recognition,24 the scope of local self-government, the protection of existing authorities,25 administrative structures, conditions of office, the control of activities, resources, the right to association and legal protection were all in place. By the time a revised draft Charter had reached the Committee on Local Structures and Finance in the summer of 198126 and then had been finalised for presentation at the sixteenth Session of the Conference of Local and Regional Authorities in October,27 the text had been refined and modified in the direction of the longer version earlier published – with a statement in the   22. Ibid. p. 2 (original emphasis).   23. Originally adopted in 1961, the European Social Charter required states to consider themselves bound by five articles out of a specified seven, plus others totalling ten, or forty-five numbered paragraphs. Revised in 1996, the current text has raised those requirements to six out of nine plus others to a total of sixteeen articles or sixty-three paragraphs.   24. The preliminary draft contained a footnote recording: ‘in the United Kingdom, which has no written constitution, the principle of local self-government should be guaranteed by a special statute’!   25. ‘Amputation of territory’, dissolution or abolition of a local authority would require consultation.   26. CPL/Loc(15)20.   27. CPL/Loc(16)6.

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accompanying draft resolution that the Charter should have the status of a convention and that contracting parties should consider themselves bound by at least twenty paragraphs (ten had to be chosen from among the ‘basic principles’).28 Mr Harmegnies’s report (entitled ‘The Principles of Local SelfGovernment’) is especially valuable for its Explanatory Memorandum29 which is prefaced by a quotation from Alexis de Tocqueville’s Democracy in America: The strength of free peoples lies in the municipality.30 Municipal institutions are to liberty what primary schools are to learning; they put it within reach of the people; they let them taste its peaceful exercise and accustom them to making use of it. Without municipal institutions a nation can give itself a free government, but it will not have the spirit of liberty.

Under the heading of ‘General Considerations’, Mr Harmegnies provided an elegant defence of the case for local autonomy. The previous tradition of local self-government was increasingly under threat. The Jacobin conception of the central authority as the fountainhead and repository of all the prerogatives of public power, which in any case never really caught on in much of Northern Europe, has been steadily discredited in most other countries too. And the totalitarian challenges to local autonomy which emerged during the 20th century no longer have a serious influence in the democratic countries of Europe. The threat to local autonomy is more insidious and more gradual, but it is cumulative and persistent.

He acknowledged the tensions inherent in the conflict between the central priorities of equality and uniformity and, on the other hand, the need for local discretion, local initiative and consequent diversity. There was to be no attempt ‘to carve out an independent local sphere by engaging in a crusade against the State . . . no sphere of immunity against the State’. There is a clear recognition of overlapping responsibilities between the different levels of government ‘so that the concept of a preserve of matters which are exclusively the concern of a single level of authority becomes increasingly difficult to defend’. However, the degree of autonomy of local communities is the touchstone of a true democracy. The existence at local level of genuine political communities having an independent political basis by means of local elections, and thus endowed with the same democratic legitimation as the states as a whole, is an

  28. These were asterisked in the draft.   29. Aspects of the memorandum’s comments on individual draft articles have been incorporated into the discussion of those articles in Chapter 3.   30. Though often rendered elsewhere as ‘local community’.

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indispensable complement to the large-scale democratic systems at national, or indeed, European level.

Mr Harmegnies went on to retell the story of ‘Previous Initiatives at European level’,31 regretting the lack of progress and declaring the need for a fresh start, an outline of the steps his team had taken towards ‘The Preparation of the draft Charter of Local Self-Government’ (stressing, in particular, the contributions made by national associations)32 and the ‘Form’ of the Charter. On this, the Explanatory Memorandum reopened the range of possibilities. One would be the adoption of a simple declaration of principles. At the other end of the spectrum, it also suggested, echoing the earlier proposal of 1961,33 that ‘it would theoretically be possible to propose the adoption of a protocol to the European Convention on Human Rights’ but conceded that those rights were all ‘rights of the individual, and it is difficult to see how a new set of rights pertaining essentially to local communities or authorities could be incorporated into this framework’. The third approach – the one adopted – was ‘the elaboration of an independent European Charter similar in many respects to the existing Social Charter’. In particular, it was an analogous system of political, rather than juridical, supervision that was sought, in which there would be a system of regular reporting by national governments.34 The approach was admitted to be ambitious. While the Social Charter established a series of subjective economic and social rights, ‘local selfgovernment, on the other hand, concerns relations between central govern­ ment and other public authorities established on the principle of territorial decentralisation. It thus affects the structure and organisation of the state itself. That governments should be particularly sensitive about such matters is hardly surprising.’35 But governments were ‘far from unaware of the values of local autonomy, even if amid other preoccupations they sometimes need to be reminded of them’. There was ‘no intention of imposing alien concepts on the Member States’. The problem was ‘above all to build in enough flexibility with regard to   31. Interestingly, he had himself appeared in 1968, during one of his own periods as Belgian Minister of the Interior, before the then European Conference of Local Authorities to comment on its draft declaration of principles on local autonomy.   32. It is noted that the Scandinavian associations expressed fundamental reservations.   33. See 21 above.   34. Article 21 of the Social Charter of 1961 (see also Article C of the 1996 revision) requires reports from all states every two years on the application of the Charter provisions they have accepted.   35. p. 12.

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the commitments to be entered into by governments to ensure that the consti­ tu­tional and structural peculiarities of the various member states do not prove a serious stumbling-block’. This would be achieved by granting a choice of Charter provisions by which states would be bound. They could limit their commitments but these could subsequently be added to whenever the relevant obstacles had been removed. Looking back to this stage at which the text of the Charter was being constructed, it is interesting to observe how carefully the balance was to be maintained between, on the one hand, the ideals of the Charter’s principles and rules and, on the other hand, the accommodation of actual state practice. The Harmegnies report concluded with an analysis of the draft Charter provisions – an analysis which was, in due course, incorporated into the Explanatory Report adopted with the Charter. The consequence of the report was the Standing Conference’s promulga­ tion in 1981 of a resolution36 on the principles of local self-government and with a draft Charter appended to it. The resolution was prefaced by a series of recitals which had become rather more petulant and more impatient in tone than previous declarations. The Versailles Charter of 1953 as well as the Resolution of the Standing Conference of 1968 and the Recommendation of the Parliamentary Assembly of 1970 were recalled. But so, too, was the repeated failure of the Committee of Ministers to take action. In a manner familiar since the 1950s, the genuine autonomy of local authorities was described, in ‘the conditions of a modern state’, as ‘an indispensable element of democratic government and essential to safeguarding the rights and the liberties of the citizen in his local community’. More expressive of the growing frustrations since World War II, however, it also stated that ‘this autonomy is threatened especially by the growing entanglement of the responsibilities of the various levels of government, by increasingly detailed and meddlesome administrative and financial regulations and by frequently excessive controls’. The lack of an official European text defining the common principles of local self-government remained ‘a serious omission which the Council of Europe as the guardian of democratic principles and human rights in Europe, ought surely to rectify’. The Committee of Ministers was requested urgently to transmit the text of the draft Charter to the next Conference of European Ministers responsible for local government, due to meet in Lugano in October 1982. The recommendation was that the Charter should have the status of a convention – but on the understanding that contracting parties would be permitted to select from the total list of provisions, at least twenty overall and at least ten from an asterisked list. Contracting parties should be required to submit five-yearly reports on ‘the

  36. Resolution 26 (1981).

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application of such provisions of the Charter as they have accepted, as well as on the situation with regard to those provisions by which they are not bound’. As to the 1981 version of the draft Charter itself, it was a draft that included all the substantive articles of the Charter as eventually approved; and with most in a near-final form. The draft received a positive welcome from the Committee of Ministers and, in due course, from the conference in Lugano. The Explanatory Report records that that conference considered the draft Charter to be an important step towards a definition of the principles of local autonomy. The Charter ‘would constitute a real innovation: there is as yet’, they said, ‘no other international text which defines and guarantees the principle of local autonomy’.37 Some ministers, however, had reservations about elevating it to the status of a binding convention and about some aspects of its content. Representatives of the Conference of Local and Regional Authorities of Europe (clrae) participated in the discussion. The conference asked the Committee of Ministers to instruct the Steering Committee for Regional and Municipal Matters [cdrm], in contact with the Conference of Local and Regional Authorities of Europe, to make the necessary changes to the draft European Charter of Local Self-Government in accordance with the comments concerning the form and the substance made during the conference, so that it may be submitted to them for approval at their next conference.38

This launched the proceedings of a Committee of Experts on Local and Regional Structures (a committee of the cdrm) which held two principal meetings in April39 and November 1983.40 In both cases, the Committee of Experts appears to have adopted an article-by-article approach, taking account, in each case, of the original clrae draft article (or paragraph), a draft from the committee’s own secretariat and proposals for amendments or substitute versions from national representatives. The report of the April meeting indicates that the United Kingdom representative played a very prominent part in the submission of proposals for amendments and other suggestions, with a focus on provisions that might cause problems for Britain – because of particular features of local government in the country,41 and the   37. Council of Europe press release B(82) 39 (12 October 1982).   38. Charter Explanatory Report.   39. For a summary of the proposals considered, see Council of Europe document RM-SL(83) 26 rev.   40. See RM-SL(84) 2.   41. For instance, in relation to what eventually became Articles 4(4) and 8(2), where the question of ‘cooperation’ between two tiers of government and the

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United Kingdom’s lack of a written constitution. It has also to be said that there was a fairly plain British interest in diluting the content of some provisions – by, for instance, rendering some ‘subject to the law’, and, in particular, making the adequacy of local authority funding subject to ‘the framework of national economic policy’.42 Other contributors of specific amendments were Denmark, the Federal Republic of Germany, Greece, Ireland, Norway, Spain, and Switzerland. The note of the meeting records that ‘broader options’ and descriptions of national situations were also submitted by Belgium, Cyprus, Italy and Portugal. Subsequent to the principal working meetings of the experts, the steering committee (cdrm) invited them to conclude the revision of their texts for submission to the Conference of Ministers to be held in Rome in November 1984 where the final text was duly approved. Overall, the final approved text was the Congress draft, as quite heavily modified to reflect the input from the governmental representatives.



opportunity for appeals from local to central government raised possible autonomy issues.   42. Many United Kingdom proposals are mentioned in greater detail in relation to the specific Charter articles discussed in Chapter 3.

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3 The Charter’s Text and Additional Protocol

A INTRODUCTION This chapter contains three principal elements. In the first place (in section B) it provides an analysis of the substantive terms of the Charter. In section C, the Charter’s ‘incidental’ provisions are discussed. These contain, for instance, the fundamentally important rules which enable states, at the time of ratifi­ cation of the Charter, to define the extent of their commitment to Charter obligations. And, finally, section D contains analysis of steps taken since the promulgation of the Charter to extend its scope in supplementary protocols – both successful and unsuccessful. The Additional Protocol on the Right to Participate in the Affairs of a Local Authority was adopted by the Council of Europe in 2009. B The Charter’s Substantive Provisions In respect of, first, the preamble to the Charter and the preliminary Article 1, and then the provisions of Part II (Articles 2–11), the terms of the Charter (in bold type) and then the Explanatory Report (in italics) are set out, followed by some brief further commentary.1 The Charter terms are those adopted by the Council of Europe at the end of the process described in Chapter 2. It should be borne in mind, however, that, in accordance with the provisions of Article 12 (discussed in section C below), not all participating states have subscribed to, and declared themselves bound by, all provisions. The Explanatory Report was adopted by the Conference of Ministers at the same time as the Charter. It has no formal binding force but, after its   1. In what follows there are frequent references to ‘the drafting stage’. This is in the interests of avoiding undue cluttering with footnotes. In each case, the source referred to is the discussion of the relevant provision of the Charter in one or other of the documents recording the work of the Committee of Experts on Local and Regional Structures. See 28 above. There are references, too, to the Harmegnies report. See 25 above.

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introductory Sections A (Origins of the Charter) and B (General remarks), Section C of the report, as a commentary on the Charter’s provisions, serves to throw additional light on the meaning the Charter’s ‘founding fathers’ may be presumed to have intended to give to its terms. It may, therefore, be invoked as an interpretative guide to their meaning, at least in situations where that meaning is considered to be ambiguous.2 In the terms used in the Explanatory Report’s own prefatory paragraphs, the report ‘does not constitute an instrument providing an authoritative interpretation of the text of the Charter, although it may facilitate the understanding of its provisions’. Like the Charter itself, of course, the text of the Explanatory Report is frozen at 1985 and takes no account of subsequent developments which might now affect the meaning to be given to the Charter’s terms. The commentary offered in this chapter, is confined to the discussion of individual provisions. For further discussion of the general difficulties arising in the interpretation and application of the Charter, see Chapter 5. Preamble The member States of the Council of Europe, signatory hereto, Considering that the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage; Considering that one of the methods by which this aim is to be achieved is through agreements in the administrative field; Considering that the local authorities are one of the main foundations of any democratic regime; Considering that the right of citizens to participate in the conduct of public affairs is one of the democratic principles that are shared by all member States of the Council of Europe; Considering that it is at local level that this right can be most directly exercised; Convinced that the existence of local authorities with real responsibilities can provide an administration which is both effective and close to the citizen; Aware that the safeguarding and reinforcement of local self‑government in   2. But see Chapter 5 for ‘interpretation’ in the context of Congress monitoring.

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the different European countries is an important contribution to the construction of a Europe based on the principles of democracy and the decentralisation of power; Asserting that this entails the existence of local authorities endowed with democratically constituted decision‑making bodies and possessing a wide degree of autonomy with regard to their responsi­bilities, the ways and means by which those responsibilities are exercised and the resources required for their fulfilment, Have agreed as follows: The preamble provides an opportunity for a statement of the basic premises underlying the Charter. These are, essentially: – the vital contribution of local self-government to democracy, effective administration and the decentralisation of power; – the important role of local authorities in the construction of Europe; – the need for local authorities to be democratically constituted and enjoy wide-ranging autonomy. Most international treaties are prefaced by a preamble, and the Charter is no exception. It makes no substantive contribution to the content of the Charter. Ratifying states do not expressly undertake to be bound by its terms.3 On the other hand, the preamble provides an account of the principled origins of the Charter and seeks to explain, in a way which is not further set out in the substantive provisions that follow, their rationale and justification. In the case of a Council of Europe treaty, it was important for the link to be made between, on the one hand, the overriding principles of democracy and human rights which the organisation was established to uphold in the aftermath of the catastrophe of mid twentieth-century Europe and, on the other hand, the contribution of the Charter’s provisions to their fulfilment. Perhaps the most important point to be made is how the general principles of democracy, normally expressed in terms of the rights of the people to participate in their democracies, are to be converted into the need for a functioning system of local authorities. It is, in effect, the rights of those local authorities, rather than the rights of their individual constituents, that require to be specified and upheld.4 The final paragraph of the preamble – that which ‘asserts’ the essential    3. See 33 below.   4. This does not mean that the notion of an individual right to local selfgovernment is unknown. Article 128(3) of the Croatian Constitution provides: ‘Citizens shall be guaranteed the right to local self-government. The right to

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qualities of local ‘autonomy’ (and the only point in the whole of the Charter at which that term is used in the English version) – amply introduces the most important of the provisions that follow. There must be demo­crati­cally established institutions [see Article 3(2)], with autonomously exercised responsi­ bilities (required, earlier in the preamble, to be ‘real’) [see Articles 3(1), 4, and 8], and autonomy of ‘ways and means’ (Articles 6, 7), and resources (Article 9). Though the preamble cannot be the direct source of substantive obligations, it is available, as other treaty preambles are, to assist with the inter­pretation of those obligations. It seems, however, to have been the case only rarely that the Charter preamble has been invoked in support of Congress interpretations of the Charter. One such instance was in the controversial Recommendation and Resolution on Belgium in 2008.5 These arose from the non-appointment by the Flemish authorities of French-speaking mayors in areas formally designated as Flemish speaking. In support of a recommen­ dation that the mayors be appointed, the Congress described the consequential barriers to democratic participation by the French-speaking population as incompatible inter alia with ‘consideration 5 of the preamble, which points out that citizen participation is a fundamental principle of local democracy’.6 Article 1 The Parties undertake to consider themselves bound by the following Articles in the manner and to the extent prescribed in Article 12 of this Charter. One of the most important concessions made in the interests of achieving a consensus among states willing to accept the final text of the Charter was that states need not commit to all its provisions. It is also a concession of which many signatory states have, in practice, taken advantage. For the detailed rules, see Article 12 and, for discussion, see below. Part I Article 2 – Constitutional and legal foundation for local self‑government The principle of local self‑government shall be recognised in domestic legislation, and where practicable in the constitution.



local self-government shall include the right to decide on needs and interests of local significance …’ And see 37 below.    5. Recommendation 258 (2008) and Resolution 276 (2008).    6. Recommendation 258 (2008), paragraph 5(b).

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This article provides that the principle of local self-government should be enshrined in written law. In view of the importance of the principle, it is further desirable that this should be achieved by including it in the fundamental text governing the organisation of the state, that is to say, the Constitution. However, it was recognised that, in those countries in which the procedure for amending the Constitution required assent by a special majority of the legislature or the assent of the whole population expressed in a referendum, it might not be possible to give a commitment to enshrine the principle of local self-government in the Constitution. It was also recognised that countries not having a written constitution but a constitution to be found in various documents and sources might encounter specific difficulties or even be unable to make that commitment. Account must also be taken of the fact that, in federal countries, local government may be regulated by the federated States rather than by the central federal government. For the federal States, this Charter in no way affects the division of powers and responsibilities between the federal State and the federated States. The Charter imposes no explicit obligation on states to incorporate the Charter’s terms into domestic law though, for some, the Charter does acquire a defined constitutional or legislative standing simply by virtue of its status as a treaty.7 On the other hand, what Article 2 does provide is that the ‘principle of local self-government’8 must be recognised. It should, as the Explanatory Report says, be ‘enshrined in written law’. This should be achieved through domestic legislation and, ‘where practicable’, in the constitution.9 Many countries – especially those adopting new constitutions since 1989 – have quite explicitly incorporated a reference to the principle. Article 104 of the Armenian Constitution provides: ‘The local self-government shall be exercised in the communities. The local self-governance is the right and power of the community to resolve on its own responsibility issues of local significance aimed at the welfare of the inhabitants in accordance with the    7. For discussion of the domestic status of the Charter, see Chapter 4.    8. It may be noted that, in the heading to Article 3, the language is of the ‘concept’ rather than ‘principle’ of local self-government.    9. The Harmegnies report referred to the principle being already embodied explicitly or implicitly in the constitutions of a majority of member states. The report quoted, in particular, the Italian Constitution (Article 5): ‘The Republic, which is one and indivisible, recognises and promotes local autonomy’. The implication, they said, of the term ‘recognises’ is that the republic does not itself establish local autonomy which is, instead, acknowledged to exist in its own right.

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Constitution and the law.’ Article 163 of the Polish Constitution provides: ‘Local self-government shall perform public tasks not reserved by the Constitution or statutes to the organs of other public authorities.’ On the other hand, as the Explanatory Report also makes clear in its comment on the ‘where practicable’ qualification, this is not readily achievable in longer-established constitutions whose amendment may be difficult. Constitutional amendments in France in 2003, however, did transform the provision made for local and regional government, and the Italian reforms, also of 2003, made important changes. The article also recognises the problem of constitutional recognition for those states (in practice the United Kingdom, as noted by the Harmegnies report) which lack a written constitution but which make do with ‘various documents and sources’. The United Kingdom was the leading proponent of adding a reference to domestic or national legislation at the drafting stage. Norway had intervened to point out that local self-government there was based on ancient, strong traditions but was not formally recognised in constitutional law. What has necessarily also to be acknowledged is that recognition of the ‘principle’ may be achieved by implication. The very legislation which creates a Charter-compatible system of local self-government is the legislation that ‘recognises’ the principle in domestic law. In the United Kingdom, for instance, it must be in this sense that the principle is claimed to be recognised – on the basis of the legislation that creates local authorities, confers their powers, and provides for their funding.10 On the other hand, of course, a claim to recognise the principle in law, whether expressly or by necessary implication, cannot, in itself, satisfy the Charter requirements. As is the case with other Charter articles, compatibility will depend upon the overall effect of what may be a package of constitutional and legislative provisions, including the actual effect in practice of their implementation. A mere statutory claim to recognise the principle of local self-government would not be sufficient, if this were contradicted or undermined by other constitutional or statutory provision in its practical implementation. As, for instance, the Explanatory Report itself says in relation to Article 9: ‘[T]he legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out’. Article 3 explicitly refers to ‘local self-government’ encompassing both the right, but also the ability, to regulate and manage a substantial share of public affairs. A point of general relevance to the application of the Charter is made in the final paragraph of the Explanatory Report’s commentary on Article 2. In   10. On the other hand, the Scottish National Party’s (SNP) proposals in 2013 for a Scottish Constitution included explicit reference to local government. See 166 below.

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federal countries, local government may be subject to regulation by the federated states. But that point has to be broadened in two respects. The first is that the power to regulate at the federated state level is joined by that level’s obligations under the Charter. It may be at the national state level that the Charter is signed and ratified but, at the same time, at the federated state level that the Charter’s obligations are imposed and have to be respected. This is made explicit in Article 4(4), (5) and Article 8(2) but the principle has to be of general application. Federated states have to carry the burden of the Charter’s obligations. Secondly, the thrust of the principle has plainly to extend to the governments of the autonomous regions or devolved territories of, for instance, Spain, the United Kingdom, despite their lack of federal status. In the interests of reaffirming these principles and of greater clarity, the Congress proposed to include a new provision in their (unadopted) draft additional protocol of 2007.11 Article 3 – Concept of local self‑go­vern­ment 1. Local self‑government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local popula­tion. 2. This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsi­ble to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen partici­pa­ tion where it is permitted by statute. This article lays down the essential characteristics of local self-government as they are to be understood for the purposes of the Charter. Paragraph 1 The notion of ‘ability’ expresses the idea that the legal right to regulate and manage certain public affairs must be accompanied by the means of doing so effectively. The inclusion of the phrase ‘within the limits of the law’ recognises the fact that this right and ability may be defined more closely by legislation. ‘Under their own responsibility’ stresses that local authorities should not be limited to merely acting as agents of higher authorities. It is not possible to define precisely what affairs local authorities should   11. See 80 below.

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be entitled to regulate and manage. Expressions such as ‘local affairs’ and ‘own affairs’ were rejected as too vague and difficult to interpret. The traditions of member states as to the affairs which are regarded as belonging to the preserve of local authorities differ greatly. In reality most affairs have both local and national implications and responsibility for them may vary between countries and over time, and may even be shared between different levels of government. To limit local authorities to matters which do not have wider implications would risk relegating them to a marginal role. On the other hand, it is accepted that countries will wish to reserve certain functions, such as national defence, for central government. The intention of the Charter is that local authorities should have a broad range of responsibilities which are capable of being carried out at local level. The definition of these responsibilities is the subject of Article 4. Paragraph 2 The rights of self-government must be exercised by democratically constituted authorities. This principle is in accordance with the importance attached by the Council of Europe to democratic forms of government. This right normally entails a representative assembly with or without executive bodies subordinate thereto, but allowance is also made for the possibility of direct democracy where this is provided for by statute. This article makes two related forms of provision to flesh out the ‘concept’ (in the heading to the article) or the ‘principle’ (the terminology of Article 2) of local self-government. They begin to give substance to the final paragraph of the Charter’s preamble which declares that local self-government ‘entails the existence of local authorities endowed with democratically constituted decision-making bodies and possessing a wide degree of autonomy with regard to their responsibilities’. Thus, Article 3, from the start, places the Charter’s emphasis on local authorities themselves as the beneficiaries of the Charter’s guaranteed rights, rather than, for instance, conferring rights to local self-government on the people. In line with the Charter’s general wish to accommodate a wide range of possible forms of local authority across Europe, however, not very much is specified about their basic characteristics, and what is said is expressed in very broad terms. Local authorities must have powers which they can exercise autonomously (paragraph 1); and authorities must be elected bodies (paragraph 2). The broad scope of these provisions is best seen in paragraph 1, though it should be borne in mind that its terms are further amplified in important ways by Article 4. As the Explanatory Report says, ‘[i]t is not possible to

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define precisely what affairs local authorities should be entitled to regulate and manage’. The different traditions of member states produce very different patterns of distribution of local-authority functions and, as also elaborated in the Explanatory Report, there could be no simplistic guarantee of ‘local affairs’ for local authorities, in the hope that such a phrase might be sufficiently well understood and of sufficiently general application to capture the idea of what local authorities must be entrusted to do.12 There are also very different styles of allocation of powers to be accommodated. The United Kingdom, for instance, may be taken very generally to join a northern/ Scandinavian tradition of a relatively small number of authorities with relatively broad-ranging functions whereas, in a southern European tradition, there may be a much larger number of authorities/ municipalities, many having a much smaller range of functions. Collectively, however, the authorities at both ends of this spectrum are presumed to be capable of regulating and managing a ‘substantial share of public affairs’. The notion of a ‘substantial share’ is necessarily one which is to be applied flexibly and, in the further interests of conferring a margin of appreciation to states, it has to be recognised that the ‘right and ability’ of authorities is subject to the qualifying words ‘within the limits of the law’ – a phrase interpreted by the Explanatory Report as enabling the closer definition by legislation of that right and ability, and the assumption seems to be that the ‘limits of the law’ should not be such as to permit restrictions on the ‘right and ability’ itself.13 The phrase ‘right and ability’ is important. The addition of ‘ability’ (which derived from the Harmegnies report), as the Explanatory Report points out, demands effectiveness.14 Authorities must have sufficient capacity to discharge the responsibilities formally allocated to them. At the drafting stage, however, Switzerland had reported that a number of its authorities were too small to carry out certain tasks on their own, and that has become one of the most commonly encountered problems in the monitoring of the Charter. Some countries – France is an archetype in this area – have a very large number of municipalities, and a very great range in the size (by population) of those authorities (typically ranging from a capital city  12. The Harmegnies report said that the specification of what affairs local authorities should regulate was ‘the subject of prolonged deliberations’. It referred to the need to abandon a traditional concept of intrinsic ‘local’ or ‘own’ affairs – thought to be a relic of a nineteenth-century conception of local authorities, like individuals, having a defined legal position outside the state.   13. ‘Within the limits of the law’ derives from an amendment proposed by the United Kingdom at the drafting stage, in recognition of British local authorities being subject to an ultra vires rule. See also 47 below.   14. See also 48 below.

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municipality with millions down to some small village municipalities with only a handful of people) but also an administrative tradition that tends to insist on all bodies with the status of municipality having the same range of statutorily conferred powers and functions. Almost inevitably, in those circumstances, the smallest municipalities jealously guard their continued right to exist which rules out an easy series of mergers of municipalities across the system and this leaves, as the only serious option, if Charter compatibility is to be maintained, the widespread use of intermunicipal cooperation to achieve joint service provision.15 Also noted in the Explanatory Report is that, in some states, functions may be ‘shared between different levels of government’. This is a phenomenon which raises difficult questions about the relationship between such ‘sharing’ and the requirement in Article 4(4) that powers ‘shall normally be full and exclusive’. It caused difficulties for the United Kingdom at the Charterdrafting stage.16 Here, though, it should be noted that the Charter requires the public affairs to be regulated and managed ‘under their own responsibility’ – a formula which the Explanatory Report interprets as preventing local authorities being ‘limited to merely acting as agents of higher authorities’. An issue not directly addressed by the Charter is the distribution of functions not between local and higher authorities but, on the one hand, between public bodies as a whole and, on the other hand, forms of private service delivery. If, for ideological reasons, a state reduces its overall commitment to the use of public services, a substantial share (or proportion) of those ‘public affairs’ will accordingly be smaller than in a state committed to a higher level of publicly provided services overall. Paragraph 2 of Article 3 contributes the second definitional characteristic of local authorities – that they are to be democratically constituted.17 Once again, the rubric is very general – accommodating a wide variety of possible systems of popular election. This has not, however, prevented the Congress from criticising the effects on local democracy of a chosen system in a particular country. An example is that of the Congress Recommendation on Montenegro in 201018 in which it was recommended that the voting system for mayors and councils be reformed – either to replace the existing list system with a system based on the single transferable vote or, at least to replace closed lists with open lists.19 A separate concern which lacks any specific Charter basis has been to encourage the extension of the local franchise to   15. See Article 10(1).   16. See also 49 below.   17. See also Article 7.   18. Recommendation 213 (2010).   19. Paragraph 5 (a).

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non-citizens20 – an extension (to other European Union citizens) already imposed in European Union states.21 Two other aspects of paragraph 2 require comment. First, there is the express protection given to the existence, alongside elected councils or assemblies, of provision for other forms of ‘direct citizen participation’. This is as far as the text of the Charter itself goes in providing for public participation in local government, but it is a theme to which the Council of Europe has returned in its adoption, in 2009, of the Additional Protocol to the Charter on the Right to Participate in the Affairs of a Local Authority.22 Many countries do make provision for local authorities to hold referendums. Secondly, and of greater practical significance, there is the Charter’s accommodation of local councils possessing ‘executive organs responsible to them’. In the period at which the Charter was formulated this was doubtless seen as a subsidiary and unproblematic gloss on the primary constitution of local authorities as elected councils. Apart from possible instances of tiny authorities capable of discharging their functions directly, it would naturally be envisaged that councils should be assisted by ‘executive organs’. These might take at least two different forms – best represented, on the one hand, by a mayor, elected by the council, to whom executive functions might be delegated; and, on the other hand, by a staff of paid officials (headed by a chief executive and/or a manager),23 to whom again executive functions might be allocated. Other possibilities might be public service agencies of one sort or another to which the authorities’ tasks might be delegated. All such institutions are unproblematic in Charter terms because they are fully capable of leaving the primacy of the elected councils intact and are readily regarded as ‘responsible’ to the councils. Largely unforeseen in 1985, however, was the institution of the directly elected mayor, a phenomenon that has spread across many European countries and has even, if rather tentatively, extended to England,24 though not to other parts of the United Kingdom. The question which the concept of the elected mayor raises is that of the responsibility of the mayor to the council. It is plain that, in most cases, the whole point of the directly elected mayor – the ‘strong mayor’ model in the United States – is to create an institution with its own autonomy and capable of acting inde­ ­­ pen­   20. Paragraph 5 (b).   21. Council Directive 94/80/EC.   22. See 81 below.   23. Anticipated, for instance, in Article 6.   24. Local Government Act 2000 and see sections 21–3 of, and Schedules 2 and 3 to, the Localism Act 2011 which further encourage the adoption of directly elected mayors – though not widely taken up. Local referendums held in May 2012 largely rejected the direct election model.

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dently of the council. It is difficult to attribute to such a mayor the quality of responsibility or accountability the Charter appears to require. It is the equivalent at the local level of the presidential (rather than parliamentary) model of government at the national level. Because the directly elected mayor was a concept that arrived late on the scene and because of this difficulty in interpreting the Charter in relation to it, no one has taken the view that states should (or could) be wholly prevented from adopting the model – one of the ambitions of the additional protocol project of 200725 was to produce a more accommodating text. The draft protocol would have provided that the means for engaging the responsibility of directly elected mayors to the council or assembly should be guaranteed by law and that, in particular, it should be ensured that ‘the council or assembly has the right of final decision in matters of prime importance’. That draft protocol was never adopted but guidance (on which the draft drew) on relations between councils and directly elected mayors had been offered by Congress Recommendation 113 (2002) on relations between the public, the local assembly and the executive in local democracy and Recommendation 151 (2004) on the advantages and disadvantages of a directly elected local executive in the light of the principles of the Charter. Another mayoral model which tests Charter compatibility is that which is prevalent in Belgium and the Netherlands where the mayor (burgemeester) is a person formally appointed by the government which, on the face of it, creates acute problems of Charter compatibility. The mayor is appointed rather than elected, and not formally by the locality at all. Responsibility to the council is, therefore, also an issue. In the Netherlands this issue was discussed extensively following Congress monitoring in 1999.26 It seems, however, that it had been substantially resolved by the time of the 2014 Congress Recommendation on the Netherlands.27 Rather separately, the question of the mode of appointment (and also of dismissal) of mayors and also of their assistants has been raised in the context of eligibility for membership of the Congress itself. The current rules provide that membership is open only to persons ‘who either hold a general local or regional authority mandate resulting from direct elections or are politically accountable to a directly elected assembly, on the condition that they can be individually dismissed by, or following the decision of the aforementioned assembly and that dismissal is provided for by law’.28 Arguably failing that   25. See 80 below.   26. See Recommendation 55 (1999) and Resolution 77 (1999).  27. See Recommendation 352 (2014). For discussion, see the attached report (paragraphs 26–30) at: https://wcd.coe.int/ViewDoc.   28. Congress Charter Article 2.1.

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test are the ‘assesori’ who are appointed by mayors and provincial presidents in Italy as members of their governing ‘giunte’.29 Though the text of Article 3 is itself silent on the matter, the greatest threat to the principles it embraces – greater even than any challenge to the democratic pedigree of the organs of local government – must occur in those circumstances where the central government enjoys powers simply to suspend or dismiss mayors or councils in respect of things done or left undone. Such powers of abrupt intervention are a major challenge to local autonomy.30 Whether or not specific statutory powers are Charter-compatible is likely to depend on three main considerations: the grounds on which central interven­ tion may legitimately be based; the identity of the decision-maker (especially the final decision-maker) in the matter; and the fairness of the procedures to be adopted. If, for instance, according to the rules laid down, the grounds for intervention must be a clear and continuing breach of the law or constitution (including a continuing failure to discharge important duties), rather than permitting suspension or dismissal on some more trivial ground, then the central power may be justified. Similarly, the power will be more Chartercompatible if its exercise requires final approval by a court (with full opportunity for involvement of those adversely affected), rather than simple ministerial decision. The Congress’s proposed additional protocol of 200731 would have specified the need for a ‘serious or repeated breach of the consti­ tution or of the law, duly established by a judicial authority or independent authority’ and with a right of appeal to a court. Article 4 – Scope of local self‑govern­ment 1. The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authori­ties of powers and responsi­bilities for specific purposes in accordance with the law. 2. Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their compe­tence nor assigned to any other authority. 3. Public responsi­bilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility   29. See Report on Italy attached to Recommendation 337 (2013).The question of Congress membership eligibility has also been raised in relation to mayors in the Netherlands. See Recommendation 55 (1999).   30. Though treated here under Article 3, they might also be viewed as an extreme form of administrative supervision under Article 8.   31. Contained in Recommendation 228 (2007). See 80 below.

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to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy. 4. Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law. 5. Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local condi­tions. 6. Local authori­ties shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision‑­making processes for all matters which concern them directly. As was explained in the comments on Article 3, it is not possible, nor would it be appropriate to attempt, to enumerate exhaustively the powers and responsibilities which should appertain to local government through­ out Europe. However, this article lays down the general principles on which the responsibilities of local authorities and the nature of their powers should be based. Paragraph 1 Since the nature of local authorities’ responsibilities is fundamental to the reality of local self-government, it is in the interests of both clarity and legal certainty that basic responsibilities should not be assigned to them on an ad hoc basis but should be sufficiently rooted in legislation. Normally, responsibilities should be conferred by the Constitution or an Act of Parliament. However, notwithstanding the use of the word ‘statute’ in this paragraph, it is acknowledged that in certain countries some delegation by parliament of power to assign specific responsibilities, particularly in respect of details or of matters requiring implementation as a result of European Community directives, may be desirable for the sake of efficiency, provided parliament retains adequate powers of supervision over the use of delegated powers. Furthermore, an exception applies in the case of member states of the European Community insofar as Community Regulations (which under Article 189 of the Treaty of Rome32 are directly applicable) may stipulate application of a specific measure at a given level of administration.

  32. Now Article 288 of the Treaty on the Functioning of the European Union. Any such European Union intervention has been, at most, very slight.

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Paragraph 2 In addition to the responsibilities assigned by legislation to specific levels of authority, other needs or possibilities for action by public bodies may present themselves. Where these fields of action have local implications and are not excluded from the general competence obtaining in most member states, it is important to the conception of local authorities as political entities acting in their own right to promote the general welfare of their inhabitants that they have the right to exercise their initiative in these matters. The general rules under which they may act in such cases may, however, be laid down by law. In certain member states, however, local authorities must be able to adduce statutory authority for their actions. A wide discretion beyond specific responsibilities can be given to local authorities under such a system, whose existence is to that extent comprehended by Article 4, paragraph 2. Paragraph 3 This paragraph articulates the general principle that the exercise of public responsibilities should be decentralised. This principle has been stated on a number of occasions within the context of the Council of Europe and in particular in the Conclusions of the Lisbon Conference of European Ministers responsible for Local Government in 1977. This implies that, unless the size or nature of a task is such that it requires to be treated within a larger territorial area or there are overriding considerations of efficiency or economy, it should generally be entrusted to the most local level of government. This clause does not imply, however, a requirement systematically to decentralise functions to such local authorities which, because of their nature and size, can only accomplish limited tasks. Paragraph 4 This paragraph is concerned with the problem of overlapping responsi­ bilities. In the interest of clarity and for the sake of avoiding any tendency towards a progressive dilution of responsibility, powers should normally be full and exclusive. However, complementary action by different levels of authority is required in certain fields and it is important that in these cases the intervention by central or regional authorities takes place in accordance with clear legislative provisions. Paragraph 5 The administrative structures of local authorities and their familiarity

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with local conditions may make them appropriate bodies to implement certain functions, the ultimate responsibility for which falls on supra-local authorities. It is important, however, in order that recourse to such delegation does not excessively impinge on the sphere of independent authority of the local level, that the latter should, when possible, be allowed to take account of local circumstances in exercising delegated powers. It is recognised, however, that in respect of certain functions, for example the issue of identity papers, the need for uniform regulations may leave no scope for local discretion. Paragraph 6 Whilst paragraphs 1 to 5 deal with matters which come within the scope of local authorities, paragraph 6 is concerned both with matters coming within the scope of such authorities and with matters which are outside their scope but by which they are particularly affected. The text provides that the manner and timing of consultation should be such that the local authorities have a real possibility to exercise influence, whilst conceding that exceptional circumstances may override the consultation requirement particularly in cases of urgency. Such consultation should take place directly with the authority or authorities concerned or indirectly through the medium of their associations where several authorities are concerned. Under the general rubric of the ‘scope of local self-government’, this article makes important further contributions to achieving the preamble’s ambition to establish local authorities ‘possessing a wide degree of autonomy with regard to their responsibilities’. Reordering the provision made in the article, the best starting-point might be in Article 4(3) which, while not dictating what should actually constitute the ‘substantial share of public affairs’ to be allocated to local authorities under Article 3(1), sets out the guiding principle. Though the specific language of ‘subsidiarity’ is not used in either the paragraph itself or in the Explanatory Report, it has been the boast of the Congress33 that Article 4(3) is the first articulation in an international treaty, of the principle of subsidiarity34 that was later adopted as a guiding mantra of the European Community and the European Union.35 The Explanatory Report restates the principle as implying   33. See, for instance, the ‘Ancona Declaration’ of October 1999 at: https://wcd.coe.int/ViewDoc.jsp?id=880845   34. The Explanatory Report reminds us, however, that the principle had previously been recognised within the Council of Europe and, in particular in the Conclusions of the Lisbon Conference of European Ministers in 1977.   35. See now Article 5.1 of the Treaty on European Union.

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that ‘unless the size or nature of a task is such that it requires to be treated within a larger territorial area or there are overriding considerations of efficiency or economy, it should generally be entrusted to the most local level of government’. In the Harmegnies report, the point had already been made that this expression of the principle of decentralisation meant that [i]n essence, any function that does not require a wider territorial compass to be carried out effectively is to be conferred on the municipality. This principle is of great importance for those countries in which there has been a tendency for local responsibilities to be taken away from the basic units of local govern­ ment: the German Association of Towns and Municipalities, for example, complains of this tendency in such fields as schools, refuse disposal, water supplies, sewerage, control of construction, nature conservation etc., and finds it all the more illogical in that the amalgamation of municipalities effected by the recent local government reform was intended precisely to enable them to carry out such functions more effectively. Similarly, in countries such as Belgium, where regional reforms have been carried out, care must be taken that the devolution of powers from the central government to the region is not accompanied by any upward transfer of local government responsibilities to the region:36 rather, there must be a reinforcement of devolution to the lowest level possible.37

Secondly, Article 4(1) and (4) make a general provision for the ‘basic powers and responsibilities of local authorities’. There is a general requirement, reflected elsewhere in the Charter38 that these be ‘prescribed by the consti­ tution or by statute’. Whatever the substantive provision made, a degree of protection is conferred simply by the required formality of the procedure. What is not specified, however, is the style in which powers and responsibilities are allocated. Much, therefore, depends on national constitutional traditions and drafting styles. In the manner of the allocation of functions within federal or devolved systems of government, some states make general statutory provision for the functions of local authorities (often divided into classes of local authority) by reference simply to a list of competences by subject area, such as parks, primary school education, road construction and maintenance, and so on. Such a list of competences contained in a general local government statute may then be followed by a number of sector-specific statutes containing a more detailed elaboration of the authorities’ powers and responsibilities. In a different tradition, however, as reflected in British   36. A concern reflected in British practice at the time of devolution to Scotland in 1999. See 155 below.   37. On the other hand, there was a more optimistic commentary on developments in Norway and in Italy.   38. See, for example, Article 8(1).

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practice, there is no general listing of local authority powers in a general statute. The starting point is, instead, the specific powers conferred in a range of different statutes – some of which may be general local government Acts but most of which will be sector-specific legislation. In such a system, the only way of assembling an overall (but inevitably somewhat ‘unofficial’) list of local authority powers is by extracting it from the very large range of relevant individual statutes. Plainly, all methods on this broad spectrum of competence-­ ­­allocation mechanisms have to be accommodated within the embrace of the Charter. Another respect in which different national traditions have to be accommodated is mentioned in the Explanatory Report’s commentary on Article 4(2). This provides for a form of ‘general competence’ for local authorities over and beyond the specific competences conferred on them – in the interests, as the Explanatory Report says, of sustaining ‘the conception of local authorities as political entities acting in their own right to promote the general welfare of their inhabitants’. The report goes on to acknowledge that ‘[i]n certain member states . . . local authorities must be able to produce statutory authority for their actions’. Clearly the United Kingdom is one of the states referred to here and, to a British reader, it may seem strange that a public authority might ever be excused the need to provide a statutory basis for powers purportedly exercised – the British tradition of review by courts and auditors has entrenched this view – but the fact that this approach is not universally shared produces a different perspective elsewhere, not only in relation to the particular matter of conferring a ‘general competence’39 but also in the general statutory style in which powers are conferred. The dominance of a stringent approach to issues of vires in the United Kingdom produces a distinctive approach to the manner in which powers must be allocated, which is not replicated in all European states. This had been a point specifically noted in the Harmegnies report which took account of the issue raised by the ultra vires rule in the United Kingdom but also of the effect of the ‘new Local Government Act of 1972’40 which had permitted the spending   39. Problematic over the years in the United Kingdom but with provision being made for authorities to incur expenditure up to a (small) statutorily defined maximum amount on anything ‘which in their opinion is in the interests of and will bring direct benefit to, their area or any part of it or all or some of its inhabitants’. Local Government Act 1972 section 137; Local Government (Scotland) Act 1973 section 83; then for powers to ‘promote well-being’ (Local Government Act 2000 section 2; Local Government in Scotland Act 2003 section 20); and now, in England, a ‘general power of competence . . . to do anything that individuals generally may do’ (Localism Act 2011 section 1).   40. See note 39 above.

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of the product of a 2p rate on anything, in the opinion of the authority, in the interests of its area. At the drafting stage, the United Kingdom delegation had demanded an extensive reformulation of the then version of the paragraph which, it was argued, in asserting ‘a general residual right to act on their own initiative’ took no account of ‘the fundamental UK constitutional principle that local authorities have no powers to act outside those specifically conferred on them by statute’. That reference was dropped and ‘within the limits of the law’ was subsequently inserted. Article 4(4) expands on 4(1) by requiring that powers conferred on local authorities should ‘normally be full and exclusive’. As the Explanatory Report implies, the powers of local authorities must, in a real sense, be theirs alone. If substantially overlapping or shared powers are also retained by higher authorities and, for instance, those authorities are financially or otherwise better resourced and better able to discharge the responsibilities, then the local authorities’ own powers may become illusory. The Charter’s intentions here may be reasonably clear but, in reality, the protections it provides are not very strong. The requirement that powers be ‘full and exclusive’ is stated to be only ‘normally’ the case. The undermining or limiting of the powers may, in any event, be permitted, provided that this is done by the law. Another way in which the powers of local authorities may be undermined is by the excessive delegation of powers originally invested in higher authorities. Here some protection is afforded by Article 4(5) which does not outlaw such delegation (a phenomenon much more familiar in some other countries than in the United Kingdom) but requires that authorities be given some discretion in the discharge of delegated functions.41 It may be noted here that the reference in both paragraph 4 and paragraph 5 to ‘central or regional’ authorities42 is a reminder that the guarantees afforded by the Charter to local authorities may need to be invoked as much against regional authorities (which will include, as relevant, federated states and devolved territories in, for example, Spain and the United Kingdom) as against the central state itself.43 It should also be observed that the idea of powers being rendered illusory because of the exercise by higher authorities of overlapping or shared powers has a wider application. As was made clear in the comments on Article 2 above, the mere specification in the constitution or in legislation of a wide range of local authority powers does not in itself ensure Charter compatibility. As the Explanatory Report says in relation to Article 9, the ‘legal authority  41. The notion of ‘delegated’ functions returns in Article 8(2), in relation to administrative supervision.   42. See also the reference in Article 8(2) to ‘higher-level authorities’ and in Article 8(3) to a ‘controlling authority’.   43. See also 36 above.

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to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out’. But the question of the adequacy of capacity may extend more broadly than issues of financial resources. Sometimes it will be the case that, especially in countries where the existence of tiny authorities is an accepted phenomenon, a wide range of powers is notionally conferred in an undifferentiated way on an entire class of municipalities which may include both the capital city and other large towns but also some of the country’s smallest towns and villages.44 This inevitably creates a credibility gap. Something else (probably the central government standing in to provide services itself) must in practice be happening. Without the staff, without the finance, it is impossible to describe such a situation as functioning local self-government. It may be a situation that can be rectified by systems of joint working within collectivities or consortia of local authorities45 but, without such a solution, Charter compatibility is achieved on paper alone. The law in the statute book bears little relation to reality. The Harmegnies report saw paragraphs (4) and (5) as an ‘attempt to come to grips with the widespread problem of overlapping responsibilities’. The Association of French Mayors had, for example, reported that confusion and a lack of clear demarcation of powers tended to dilute responsibility and left the ultimate power of decision with the central authorities.46 It was fully recognised, they said, that complementary action by more than one level of government was often required but this had to be on the basis of equality and not tend to reduce the lower authorities to near agents of the higher. Lawmakers should not ‘deal with all kinds of particulars that could perfectly well have been left to the discretion of local authorities’. Complaints were noted from the German municipalities of ‘virtually exhaustive Länder laws on kindergartens, playgrounds, the promotion of sport, libraries, music schools, etc.’. From Sweden had come complaints of an increasing use of delegation of powers to local authorities, at the expense of preserving an adequate sphere of independent responsibility at the local level. At the drafting stage, however, the United Kingdom delegation was concerned about the formula ‘full and exclusive’ in relation to local authority powers, and referred to the existence of rights of appeal from local authorities to central government, producing a position in which central decisions could be substituted for local decisions. They were not successful, however, in removing the formula. It is, of course, qualified both by ‘normally’ and by ‘except as provided by the law’.47 And the Explanatory Report, echoing the   44. See 38 above.   45. See also Article 10.   46. A continuing source of criticism in France. See Recommendation 78 (2000).   47. See also Article 8 below.

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language of the Association of French Mayors, does itself acknowledge the need for ‘complementary action’ whose legitimacy it acknowledges where ‘in accordance with clear legislative provisions’. While the first five paragraphs of Article 4 impose substantive require­ ments, paragraph (6) is procedural in nature. In common with certain other Charter articles [notably Article 9(6) on the redistribution of financial resources and also Article 5 on boundary changes], the paragraph imposes an obligation to consult local authorities in relation to decision-making on ‘all matters which concern them directly’. As the Explanatory Report says, such consultation may often be undertaken through associations of local authorities.48 It may be noted that, at the Charter drafting stage, the United Kingdom delegation had taken exception to an earlier, stronger version of paragraph (6) which had referred to the right of local authorities to have ‘an effective share’ in the planning of all matters, even if beyond their own scope if they had ‘particular local implications’. This could, it was argued, include ‘virtually any matter’. Article 5 – Protection of local authority boundaries Changes in local authority boundaries shall not be made without prior consultation of the local communi­ties concerned, possibly by means of a referendum where this is permitted by statute. Proposals for changes to its boundaries, of which amalgamations with other authorities are extreme cases, are obviously of fundamental importance to a local authority and the citizens whom it serves. Whilst in most countries it is regarded as unrealistic to expect the local community to have power to veto such changes, prior consultation of it, either directly or indirectly, is essential. Referendums will possibly provide an appropriate procedure for such consultations but there is no statutory provision for them in a number of countries. Where statutory provisions do not make recourse to a referendum mandatory, other forms of consultation may be exercised. As the Explanatory Report says, proposals to change local authority boundaries are potentially of fundamental importance to the affected authorities. Once again, the degree of sensitivity of this issue is something that varies from state to state. In some states, the existence over hundreds of years of the same pattern of municipalities can make boundary change a very problematic issue. Often, this situation will coincide with the municipalities being very small and inefficient and, therefore, a potential target for territorial   48. See also Article 10(2).

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reform by central authorities. Indeed, an irony of the situation may be that the lack of capacity of such municipalities may render them, in effect, noncompliant with Charter requirements but, at the same time, now vulnerable to intervention which may lead to a total loss of autonomy by, for example, merger with the territories and institutions of their neighbours. This may be something that can be solved instead by provision for interauthority cooperation49 but that may itself be a far from satisfactory answer. The degree of sensitivity to boundary change may be less in those countries where territorial reform has been a frequently occurring event. It is well under­ stood, however, that, in the United Kingdom itself, where there were several wide-ranging reorganisations in the twentieth century, proposals for further specific (or general) change can be matters of high sensitivity.50 These differences between state traditions were fully recognised by the Harmegnies committee. On the one hand, the ‘existential rights of munici­ palities’ were safeguarded in the cantonal constitutions of Switzerland. The Association of French Mayors – in France, to this day, the total number of communes remains at about 37,000, as it has for 200 years – argued that boundary changes should not be permissible without the consent of the local communities concerned. On the other hand, the committee noted, in other countries such as Belgium or the United Kingdom, that boundary changes are left to the discretion of the legislature. In Finland, opinion on the issue was said to be divided. At all events, the Charter has to be seen to take this fundamental issue seriously. At the same time, however, in an area where national patterns vary so substantially, the Charter cannot presume (as recognised by the Harmegnies committee) to dictate particular models of territorial or institutional design. Nor does it insist on the adoption of particular criteria upon which boundary reform should be based – though, in some countries, there is provision for such general criteria to be deployed. The Charter response, therefore, is to leave decision-making where it lies nationally but to insist instead on procedural protection in the form of the requirement in Article 5 of local consultation. There was some discussion of the form of consultation to be required at the drafting stage and this resulted in the rather non-specific reference to the possible use of a referendum (or presumably more than one, as necessary) where permitted by statute. A curiosity of this article is that there is ambiguity as to who should be consulted. This arises from what is perhaps the only significant instance in the whole Charter of linguistic ambivalence between its two official languages.   49. See Article 10.   50. See the use of the Local Government Act 2010 to prevent the implementation of certain unpopular local authority mergers in Norfolk, Suffolk and Devon.

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In the French text, consultation is required to be with ‘les collectivités locales concernées’ – thus retaining the language used throughout the Charter as the equivalent in French of ‘local authority’. On the other hand, the English text refers to ‘the local communities’, which has rather different connotations, and probably makes better sense in the context of the use of referendums as a means of consultation. Article 6 – Appropriate administrative structures and resources for the tasks of local authorities 1. Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal adminis­trative structures in order to adapt them to local needs and ensure effective management. 2. The condi­tions of service of local government employees shall be such as to permit the recruitment of high‑quality staff on the basis of merit and competence; to this end adequate training opportunities, remun­ era­tion and career prospects shall be provided. Paragraph 1 The text of this paragraph deals not with the general constitution of the local authority and its council but rather with the way in which its administrative services are organised. Whilst central or regional laws may lay down certain general principles for this organisation, local authorities must be able to order their own administrative structures to take account of local circumstances and administrative efficiency. Limited specific requirements in central or regional laws concerning, for example, the establishment of certain committees or the creation of certain admini­ strative posts are acceptable but these should not be so widespread as to impose a rigid organisational structure. Paragraph 2 In addition to the appropriate management structures, it is essential to the efficiency and effectiveness of a local authority that it is able to recruit and maintain a staff whose quality corresponds to the authority’s responsi­ bilities. This clearly depends in large degree on the local authority’s ability to offer sufficiently favourable conditions of service. The Harmegnies committee argued that ‘[t]he status of local authorities as self-governing corporate bodies implies that they must enjoy a reasonable degree of organisational autonomy’, and this article asserts two different

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autonomy values for local self-government. The first paragraph requires that local authorities be able to determine ‘their own internal administrative structures’ and, to a degree, exposes rather different traditions in European countries. In the United Kingdom, in the earlier days of the development of local government, it was normal for quite intrusive general legislative provision to be made which not only required, in effect, most local authority business to be done in committees but also prescribed what business could not be delegated to committees or to subcommittees, as well as requiring certain named committees to be established.51 The appointment of particular officials has also been prescribed and, in part because of strict judge-created rules, the limits of delegation within authorities both to committees and to officials have been laid down.52 Some procedural matters have been left for determination by authorities in standing orders but a procedural framework is laid down in legislation, with some such legislative requirements relaxed in recent years. In other countries, however, there has been a tradition of leaving internal institutions and procedures for much fuller regulation by authorities themselves. Typically they must draw up and adopt a ‘statute’ which provides for these internal matters. It was this divergence of practice which raised United Kingdom concerns about the original draft version of the article. The article’s second paragraph is also concerned with an aspect of administrative structures and resources but is quite differently focused. It is directed towards ‘resources’ and, in some respects, supplements the provision made by Article 9 in relation to financial resources. Local authorities must have both the financial and staff resources to enable them to discharge their responsibilities. On the other hand, it is not completely clear what the paragraph requires and of whom. The paragraph appears to impose require­ ments on the ‘conditions of service’ (including, for example, training opportunities) but, in so doing, also appears to assume that those conditions of service are not the responsibility of the authorities themselves but of central government. If that assumption were true, then this paragraph might indeed be interpreted as conferring a right on local authorities which is enforceable against central government. If, in fact, however, the conditions of service are determined by local authorities themselves (whether individually or collectively) it is less than clear how this paragraph operates to the benefit of local authorities and local autonomy.

  51. See, for example, Municipal Corporations Act 1882 section 22.   52. See Local Government Act 1972 section 101; Local Government (Scotland) Act 1973, section 56. At the Charter drafting stage, the British delegation pointed out these characteristics.

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Article 7 – Conditions under which responsibilities at local level are exercised 1. The conditions of office of local elected representatives shall provide for free exercise of their functions. 2. They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protec­tion. 3. Any functions and activities which are deemed incompati­ble with the holding of local elective office shall be determined by statute or fundamental legal principles. This article aims at ensuring both that elected representatives may not be prevented by the action of a third party from carrying out their functions and that some categories of persons may not be prevented by purely material considerations from standing for office. The material considerations include appropriate financial compensation for expenses flowing from the exercise of functions and, as appropriate, compensation for loss of earnings and, particularly in the case of councillors elected to full-time executive responsibilities, remuneration and corresponding social welfare protection. In the spirit of this article, it would also be reasonable to expect provision to be made for the reintegration of those taking on a full-time post into normal working life at the end of their term of office. Paragraph 3 This paragraph provides that disqualification from the holding of local elective office should only be based on objective legal criteria and not on ad hoc decisions. Normally this means that cases of incompatibility will be laid down by statute. However, cases have been noted of firmly entrenched, non-written legal principles, which seem to provide adequate guarantees. The Explanatory Report clarifies the general purposes of this article which are, in different ways, to ensure the freedom of local elected representatives – and thus to expand on what is said in Article 3(2) about the need for councils to be composed of freely elected individuals – and to define further the most essential characteristic of local democracy. Paragraph 1 requires that the conditions of the ‘free exercise’ of functions should be assured, to the exclusion, as the Explanatory Report confirms, of third-party intervention. In an original draft of the article, the Congress had wished this benefit to be ‘guaranteed’ but this was eventually, on a United Kingdom initiative, replaced by the softer ‘provided’.

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Paragraph 2 might be thought to be uncontroversial in its insistence on merely ‘appropriate’ forms of financial compensation but many reservations were expressed at the Charter drafting stage, by states including Switzerland53 which, along with several others, has continued its opposition by declining, under Article 12, to sign up to this paragraph.54 The United Kingdom was one of those states that questioned the terms of paragraph 2 but the principle that rules may disqualify some categories of person from holding local elective office (in the United Kingdom, both rules of general application to elections – national and local – and also rules specific to local elections, such as those which prevent employees of the council itself from also being a councillor) was widely accepted. Added at a late stage was the possibility that these rules might, instead of being contained in statute, derive from ‘fundamental legal principles’. Article 8 – Administrative supervi­sion of local authorities’ activ­i­ties 1. Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute. 2. Any administra­tive supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher‑level authorities in respect of tasks the execution of which is delegated to local authorities. 3. Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect. This article deals with supervision of local authorities’ activities by other levels of government. It is not concerned with enabling individuals to bring court actions against local authorities nor is it concerned with the appointment and activities of an ombudsman or other official body having an investigatory role. The provisions are above all relevant to the philosophy of supervision normally associated with the contrôles de tutelle which have long been the tradition in a number of countries. They thus concern such practices as requirements of prior authorisation to act or of confirmation for acts to take effect, power to annul a local authority’s decisions, accounting controls, etc.   53. That country’s ‘militia system’ was invoked.   54. See 72 below.

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Paragraph 1 Paragraph 1 provides that there should be an adequate legislative basis for supervision and thus rules out ad hoc supervisory procedures. Paragraph 2 Administrative supervision should normally be confined to the question of the legality of local authority action and not its expediency. One particular but not the sole exception is made in the case of delegated tasks, where the authority delegating its powers may wish to exercise some supervision over the way in which the task is carried out. This should not, however, result in preventing the local authority from exercising a certain discretion as provided for in Article 4, paragraph 5. Paragraph 3 The text draws its inspiration from the principle of ‘proportionality’, whereby the controlling authority, in exercising its prerogatives, is obliged to use the method which affects local autonomy the least whilst at the same time achieving the desired result. Since access to judicial remedies against the improper exercise of supervision and control is covered by Article 11, precise provisions on the conditions and manner of intervention in specific situations have not been felt to be essential. This article both reflects a core constituent of the idea of local authority autonomy and responds to a particular threat to that autonomy from central governments and other higher-level authorities. If substantial powers for local authorities (Articles 3 and 4) and the funding necessary to discharge them (Article 9) are the most significant guarantors of autonomy, it is just as clear that that autonomy must not be subverted by centrally imposed forms of control and supervision. The article was one that raised some of the greatest concerns for state representatives at the drafting stage. Its text was apparently very closely scrutinised. The question of supervision raised different issues at that time – and it still does on a continuing basis – within different European traditions of local government. As the Explanatory Report acknowledges, a principal target of Article 8 is the system of ‘contrôles de tutelle which have long been the tradition in a number of countries’. These had their origin in the French Napoleonic system which, in its most intrusive form, involves a comprehensive scheme of reporting all decisions of local authorities to the supervising authority (archetypically, the prefect) which has the power to annul decisions

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on either legal or policy grounds, often at a stage prior to the actual making or implementation of the decision, that is, rendering decisions subject to prior authorisation. The most challenging aspects of such systems of supervision from the point of view of local autonomy were 1. the requirement of prior authorisation which could clearly damage local initiative; and 2. more importantly, the capacity of higher authorities to interfere on policy (expediency) grounds. Few would challenge the possibility of a form of supervision on constitutional or legal grounds, provided that a final decision was made by a court. Systems based on this comprehensive approach to supervision of local authorities remain in place in many countries, though now subject to the requirements of Article 8. The patronising language of ‘tutelage’ has largely disappeared. In Turkey, however, Article 127 of the constitution continues to refer to the central administration’s ‘power of administrative trusteeship’ over local authorities to ensure the functioning of local services in conformity with the principle of the integral unity of the administration. Though the United Kingdom has never adopted a system of administrative supervision along these lines, this does not mean that it is immune from Article 8 concerns.55 These may take different forms. At the drafting stage, a principal worry for the British representatives was a collision between the emerging Charter theory of autonomy implying a complete independence of operation of local authorities and, on the other hand, the practice of cooperation between tiers of government which might entail a supervisory relationship. It was a reflection of the same concerns expressed about the formula ‘full and exclusive’ used in Article 4(4) in relation to powers conferred on local authorities. It was ‘perfectly proper’ for local authorities to be protected from ‘arbitrary and undemocratic interference by central government’ but central government will have an entirely legitimate and continuing interest in the very extensive areas of public life where responsibilities have been given to local government. In the United Kingdom, the relationship between central and local government is in many respects a partnership and the functions of central and local government cannot be strictly separated. A considerable degree of cooperation between the two levels is both necessary and desirable.

Earlier, in the Harmegnies report, it had been noted that the United Kingdom local authority associations had identified over a thousand government controls on local authorities – a situation which had the obvious danger of becoming ‘a vehicle for a process of tacit recentralisation’. It was also   55. See also 49 above.

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recorded that the British government had set about relaxing or abolishing some three hundred unnecessary or excessive controls. Article 9 – Financial resources of local authori­ties 1. Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers. 2. Local authorities’ financial resources shall be commensurate with the responsibilities provided for by the constitu­tion and the law. 3. Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate. 4. The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks. 5. The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility. 6. Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them. 7. As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdic­tion. 8. For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law. The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out. Paragraph 1 This paragraph seeks to ensure that local authorities shall not be deprived of their freedom to determine expenditure priorities. Paragraph 2 The principle in question is that there should be an adequate relationship

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between the financial resources available to a local authority and the tasks it performs. This relationship is particularly strong for functions which have been specifically assigned to it. Paragraph 3 The exercise of a political choice in weighing the benefit of services provided against the cost to the local taxpayer or the user is a fundamental duty of local elected representatives. It is accepted that central or regional statutes may set overall limits to local authorities’ powers of taxation; however, they must not prevent the effective functioning of the process of local accountability. Paragraph 4 Certain taxes or sources of local authority finance are, by their nature or for practical reasons, relatively unresponsive to the effects of inflation and other economic factors. Excessive reliance on such taxes or sources can bring local authorities into difficulties since the costs of providing services are directly influenced by the evolution of economic factors. It is recognised, however, than even in the case of relatively dynamic sources of revenue there can be no automatic link between cost and resource movements. Paragraph 6 Where redistributed resources are allocated according to specific criteria set out in legislation, the provisions of this paragraph will be met if the local authorities are consulted during the preparation of the relevant legislation. Paragraph 7 Block grants or even sector-specific grants are preferable, from the point of view of local authority freedom of action, to grants earmarked for specific projects. It would be unrealistic to expect all specific project grants to be replaced by general grants, particularly for major capital investments, but excessive recourse to such grants will severely restrict a local authority’s freedom to exercise its discretion with regard to expenditure priorities. However, the part of total resources represented by grants varies considerably between countries, and a higher ratio or project-specific grants to more general grants may be considered reasonable where grants as a whole represent a relatively insignificant proportion of total revenue. The second sentence of Article 9, paragraph 7, seeks to ensure that a grant for a specific purpose does not undermine a local authority’s freedom to exercise discretion within its own sphere of competence.

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Paragraph 8 It is important for local authorities that they have access to loan finance for capital investment. The possible sources of such finance will, however, inevitably depend on the structure of each country’s capital markets; procedures and conditions for access to these sources may be laid down by legislation. The requirement that decentralised forms of government be adequately funded has an iconic status in any analysis of intergovernmental relationships within states. Whatever the formal constitutional or legal guarantees of the existence and composition of the decentralised bodies and whatever the powers and responsibilities formally allocated to them, the availability or nonavailability of funding is a sure basis on which to cut through the formalities to expose the true relationship between two tiers of government. This is true of relations within federations; within devolved systems of government; and, perhaps above all, in systems of local self-government. Nothing is more characteristic of discourse between central and local government than the complaint by local authorities that they have insufficient funding to meet the spending needs of the responsibilities imposed upon them. Nothing is more sensitive, from a central government perspective, than the ability to manage the national economy and, within limits, to steer policy implementation by financial mechanisms in areas where there is an inevitable sharing of overall responsibilities. Conflict on the issue of financial resources was already apparent to the Harmegnies committee. They reported, for instance, that the Swedish government had imposed restrictions on local government expenditure. In the United Kingdom, new powers were being proposed in England and Wales to control the expenditure of local authorities56 and, in Scotland, the Secretary of State already had powers to order local authorities to cut the level of rate and also to reduce levels of grant to authorities thought to be overspending.57 Indignantly, the committee described this as removing the last vestiges of the original responsibility of local elected representatives to exercise a political choice. In Belgium, inadequate funding had induced some authorities to hand back responsibilities to the state. It is not surprising, therefore, that the discussion of this article at the Charter drafting stage was the most lively of all (with an obvious conflict between the starting position of the Congress and then, on the other hand, the representatives of states); that the Charter preamble insists on the   56. These came to be included in the Rates Act 1984.   57. This had been effected by the Local Government (Scotland) 1973, as inserted by the Rating and Valuation (Amendment) (Scotland) Act 1984.

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availability to local authorities of the resources required for the fulfilment of their responsibilities; and that the Explanatory Report opens its commentary on Article 9 with the blunt statement: ‘The legal authority to perform certain functions is meaningless if local authorities are deprived of the financial resources to carry them out’. The terms of Article 9 may be grouped under the following four heads: 1. In the first place, paragraphs 1 and 2 provide for the general ‘adequacy’ of the financial resources available to local authorities.58 In addition, paragraph 4 insists on the diversity and buoyancy of those resources. Paragraph 1, in particular, received a lot of attention at the drafting stage, with the United Kingdom leading the attack. Its representatives succeeded in deleting a reference to ‘distinct’ resources for local authorities. They were also successful in having the phrase ‘within national economic policy’ inserted, which operates as a significant qualification of the general right. They had also objected to ‘adequate’ but it is clear that this formula still leaves the degree of funding required by the paragraph very fluid and open to interpretation. The Explanatory Report correctly lays some emphasis on the freedom to ‘dispose freely’, an idea which may be linked to the preference in paragraph 7 for the non-earmarking of grants. Paragraph 2 raised very strong United Kingdom protests, particularly at the stage when it had contained a second sentence requiring that the transfer of any new responsibilities to local authorities should be accompanied by additional funding. It was argued that sometimes authorities sought new powers without attaching the condition of further financial resources. The sentence was deleted.59 The Explanatory Report clarifies the purpose of paragraph 4 in its quest for inflation-proofing of funding resources. It was another provision on which, at the drafting stage, the United Kingdom expressed strong reservations, pleading again at this point the relevance of ‘national economic policy’, mentioned in paragraph 1. They sought to remove the entire paragraph. It nevertheless survived but with the insertion of ‘as far as practically possible’. 2. Then paragraph 3 implicitly acknowledges that the total financial resources available to local authorities may derive both from sources whose levels they themselves can decide and also from other sources (principally grants but also forms of taxation) whose level is determined by some higherlevel authority. The paragraph then insists, rather feebly, that a ‘part at least’ of their total resources must indeed derive from taxes and charges they can control. This formula does not impose a very strong obligation on national   58. For further discussion of ‘adequacy’, see Chapter 5.   59. The Congress draft additional protocol of 2007 (see 80 below) would have reinstated a similar requirement as well as strengthening the content of paragraphs 1 and 2 of Article 8 in other ways.

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authorities to pitch the level of local contribution, and therefore local choice, very high. On the other hand, as the Explanatory Report makes clear, that exercise of political choice locally is an important element in achieving a degree of local accountability for the choices made. Local authorities have to take some responsibility for the decisions they make, not just about priorities within their total level of funding but also about that total level itself. At the drafting stage, this was another paragraph that was controversial for the British representatives. ‘Within the limits of statute’ seems to have been inserted on their initiative. It was stated that the United Kingdom delegation regarded the insertion of the phrase limiting local authorities’ absolute power over the level of local taxes as necessary, because no UK government would wish to commit its successors to continuing to maintain the present freedom to determine rate levels which local authorities enjoy. Indeed, in Scotland, the Secretary of State can, in certain circumstances, already redetermine the level set by a local authority.

When the draft additional protocol was produced by the Congress in 2007,60 however, the text would have strengthened the rule to require that a substantial proportion of revenues should be derived from charges and local taxation whose levels they could decide. Local authorities should have an effective margin for manoeuvre in the discharge of their own responsibilities.61 Along with all the other provisions in the draft protocol, this proposal did not make any headway. 3. Paragraphs 5, 6, and 7 elaborate on the grant income of local authorities. Paragraph 7 prefers general grants over project-specific grants in order to preserve, as far as possible, policy discretion – a provision clearly related to the ‘free disposal’ requirement of paragraph 1. Paragraph 5, in the meantime, requires equalisation procedures for the protection of financially weaker local authorities; while paragraph 6 insists on the consultation of local authorities in relation to the rules according to which resources are ‘redistributed’ to them, presumably whether in the pursuit of equalisation or not.62 All these provisions attracted the critical attention of the United Kingdom (as well as other states) at the drafting stage. There was a return to attempts to strengthen the current provisions (including more elaborate consultation procedures) in the additional protocol exercise of 2007. 4. Quite separately, paragraph 8 addresses the need of local authorities for funding not only from recurrent, year-on-year, sources but also by means of borrowing for capital investment.   60. Recommendation 228 (2007). See 79 below.   61. Article 7 of the draft.   62. For other Charter requirements of consultation, see Articles 4(6), 5.

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Article 10 – Local authorities’ right to associate 1. Local authorities shall be entitled, in exercising their powers, to co‑­ operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest. 2. The entitlement of local authorities to belong to an associa­tion for the protection and promotion of their common interests and to belong to an internation­al association of local authorities shall be recognised in each State. 3. Local authorities shall be entitled, under such conditions as may be provided for by the law, to co‑operate with their counterparts in other States. Paragraph 1 This paragraph covers co-operation between local authorities on a functional basis with a view in particular to seeking greater efficiency through joint projects or carrying out tasks which are beyond the capacity of a single authority. Such co-operation may take the form of the creation of consortia or federations of authorities, although a legal framework for the creation of such bodies may be laid down by legislation. Paragraph 2 Paragraph 2 is concerned with associations whose objectives are much more general than the functional considerations of paragraph 1 and which normally seek to represent all local authorities of a particular kind or kinds on a regional or national basis. The right to belong to associations of this type does not however imply central government recognition of any individual association as a valid interlocutor. In a Council of Europe instrument of this type, it is normal that the right to belong to associations at the national level be accompanied by a parallel right to belong to international associations, a number of which are active in the promotion of European unity along lines which accord with the aims laid down in the statute of the Council of Europe. However, Article 10.2 leaves to individual member states the choice of means, legislative or otherwise, whereby the principle is given effect. Paragraph 3 Direct co-operation with individual local authorities of other countries should also be permitted, although the manner of such co-operation must respect such legal rules as may exist in each country and take place within the framework of the powers of the authorities in question.

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The provisions of the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (21 May 1980, ETS No. 106) are particularly relevant in this respect, although some forms of co-operation need not be restricted to frontier areas. It was appreciated at the drafting stage that this article brings together, under the apparently unifying head of a ‘right to associate’, some really quite diverse aspects of local autonomy. The first paragraph addresses the freedom that local authorities should enjoy to combine with others, in one way or another, to achieve common purposes. The article is not prescriptive as to the forms which such common working may take but clearly the formula used – whether involving co-operation or the formation of consortia – envisages a wide range of possibilities. The functional extent of the co-operation may vary widely – from a single function focus on, for example, a shared waste-collection or waste-disposal facility to a form of co-operation extending over a range of functions. Presumably both servicedelivery functions and back-room functions, such as financial administration, are encompassed. Then, plainly, the paragraph must embrace both the limited partnerships of two authorities and also wider networks of authorities operating together. And thirdly, the mechanisms of co-operation and the forms of consortia which may be established may presumably vary quite widely and, as anticipated in ‘within the framework of the law’, according to the styles of institutional joint working envisaged by domestic legislation. The extent to which such consortia may be granted an independent legal identity may vary substantially from state to state. There is presumably no problem, from a United Kingdom perspective, with compliance with this paragraph of Article 10. There has been a very long-standing statutory commitment to the opportunity for establishing joint committees and joint boards63 as well as the option of embarking on more unofficial forms of joint working. Though there may have been a relatively recent interest in the sharing of administrative services between local authorities as an economy measure, the general use of joint working between authorities has not been very substantial in the United Kingdom – one of those countries with a tradition of large local authorities, normally with the capacity to discharge the functions located to them. This is not always the case, however. To take the example of recent Scottish reorganisations, the reforms of 1975 acknowledged the undercapacity of some of the smaller new districts and, in certain regions, allocated some of their functions to the regional authorities themselves. On the other hand, the allocation of nearly all functions to all councils from 1996 may have been   63. See Local Government Act 1972 sections 101–4; Local Government (Scotland) Act 1973 sections 56–9.

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done with less regard to the capacity of the smaller ones to discharge all functions, leaving a need for some to consider joint working. The phenomenon of compulsory joint working (here again the Scottish example of joint working in most areas for the delivery of police and fire and rescue services64 is instructive) raises autonomy questions. But, if these are the questions which arise in a ‘large authority’ country such as the United Kingdom, very different issues arise in those countries with strong traditions of local authorities which are both very small and underresourced but also very resistant to amalgamation. In these cases, some form of co-operation between smaller authorities may be the only Chartercompatible solution available, and the example of the French ‘collectivités de communes’ may be the most prominent. Paragraph 2 raises a completely different principle of local authority freedom. Authorities should be able to form associations for the ‘protection and promotion of their common interests’. In the interests of a broader solidarity, the paragraph extends this guarantee to belonging to international associations but it will, in most circumstances, be the state-level opportunity which is of much greater importance. There are at least three reasons for the high significance of the collective organisation of local authorities in associations. The first is that the struggle for local autonomy in the shape of an appropriate balance in a state between central (including regional) and local power can never be achieved by local authorities (however individually autonomous) acting alone. Just as individual persons need to act collectively for some purposes, so it is with local authorities that they need associations or unions to enable the sharing of forces to stand up to the pressures that may be imposed on them individually by an overbearing state. As the Harmegnies committee said, national associations are crucial to ensuring that national governments are not in a position to apply the principle of ‘divide et impera’. Local authority associations may embrace all authorities in the state or they may exist separately to accommodate different classes of authority or the authorities of different regions – both of which options have been reflected in British practice. Acting together, local authorities can pool information, expertise and resources in order better to represent their collective interests. Responses to central government policy and legislative initiatives can be coordinated; as can views on grant distribution proposals; and the initiatives of local authorities may be more strongly pursued. As already noted, the Charter itself requires consultation with local authorities at certain points65 and the Explanatory Report anticipates that this will often be by way of associations.   64. Prior to the eventual creation of single (national) services by the Police and Fire Reform (Scotland) Act 2012.   65. See Articles 4(6), 5, and 9(8).

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Secondly, the existence of local authority associations may clearly benefit central government in its relations with local authorities. This may not instantly appear to be a consideration operating to the benefit of local autonomy but there is no general reason why the co-ordination and relative stability brought to central–local relations should not also serve Charter interests. There are, however, two aspects of the organisation of associations which have raised Charter issues in some states. In certain countries, it is apparently the case that the principal local authority association enjoys the ‘benefit’ of a secretary or chief executive seconded to them from a central government department.66 While this may have advantages in bringing to the association additional knowledge and understanding, there are clearly questions raised about the consequences for the association’s autonomous operation. Secondly, it is the case that in certain countries67 membership of the national association is made compulsory. This may be a situation that raises no difficulty for the large majority of local authorities which, for the reasons already discussed, derive benefits from membership. Central governm­ ent may benefit from the ability to deal with a single body without the need for additional consultation with a dissident minority of authorities. The association itself may benefit from the apparent solidarity (and additional sub­ scription income) deriving from universal membership, however uncomfortable it may also be to accommodate some reluctant member authorities. A loser, however, may be the autonomy of that reluctant minority. They may have good reason to be sceptical of the existence of any advantages to them of being represented by an association dominated by a majority of members with whom they have few shared interests and it is arguable that they should have the right to decline to be members if they wish to do so. A third aspect of the work of local authority associations has a specific connection with the process of Charter monitoring. National monitoring exercises place a very heavy premium on the ability and willingness of someone to present the other side of what may be a rather rose-tinted account of local autonomy deriving from the statute book and the representatives of central government. Such countervailing information may possibly be obtained from individual local authorities, from non-governmental organisations (NGOs) or from academics and others with individual expertise. But the existence of at least one strong association is also a major factor, provided that it enjoys a political independence from central government – a phenomenon that may not always be guaranteed. A political party dominant at the level of the central parliament and government will also often be the majority party across local government as well, and party discipline may help to protect defects in   66. Armenia and Turkey have been notable examples.   67. Notably again Turkey.

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the system from exposure. Another phenomenon which has sometimes been thought to have a similar obfuscating effect is the unity of enthusiasm, regardless of party configurations, between central and local government for the prospect of European Union membership. Congress monitoring, undertaken in anticipation of a country’s access to the European Union, may be adversely affected by an uncritical stance by a local authority association which is as keen on presenting a good impression to both the Council of Europe and the European Union. Article 11 – Legal protection of local self‑gove­r nm­ent Local authori­ties shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self‑government as are enshrined in the constitution or domestic legislation. By recourse to a judicial remedy is meant access by a local authority to: a. a properly constituted court of law, or b. an equivalent, independent, statutory body having the power to rule and advise on the ruling respectively, as to whether any action, omission, decision or other administrative act is in accordance with the law. An instance has been noted in one country68 where, although administrative decisions are not subject to an ordinary appeal to a court, it is possible to have recourse to an extraordinary remedy called an application for reopening of proceedings. This judicial remedy, which is available if the decision is based on a manifestly incorrect application of the law, is in accordance with the requirements of this article. In an earlier version of this article at the drafting stage, its scope was more broadly cast but, following amendments (proposed it seems by the United Kingdom), this right of local authorities to ‘legal protection’ was confined in scope to the protection of powers and principles contained in a country’s domestic constitution and legislation. The article does not, in consequence, assert any direct judicial protection for the rights assured to local authorities under the articles of the Charter itself.69 There may, of course, be an overlap between Charter rights and domestically secured rights but Article 11, as it  68. I am grateful to Professor Eivind Smith for the suggestion that this was probably a reference to Sweden.   69. The Congress’s draft additional protocol of 2007 (see 81 below) would have extended the ambit of legal protection to include rights secured by the Charter and the protocol itself.

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stands, makes no assumptions about the extent to which Charter rights may, indeed, have been incorporated into a domestic legal system. To this extent, the article respects both the terms of Article 2 of the Charter which imposes no general requirement for the transposition of Charter terms into domestic law but requires only that the ‘principle of local self-government’ be recognised in domestic legislation and also the variations in state practice as to the recognition of the Charter and other international treaties in domestic systems.70 It had been observed in the Harmegnies report, and then at the drafting stage, that, in Denmark, Norway and Sweden, judicial remedies, such as those anticipated by the article, were not available to local authorities in their jurisdictions. C THE CHARTER’S INCIDENTAL PROVISIONS It has already been noted that, at many points, the text of the Charter reveals the ambivalence towards its scope and its effectiveness of those who drafted it on behalf of Council of Europe member states. On the one hand, it was to be a fully binding treaty, imposing legal obligations – rather than a mere statement of aspirations. On the other hand, there was a tendency to weaken the effectiveness of those obligations. In the last section, we noted that, at many points in Part I of the Charter, the language used contributes to the opportunity to interpret its terms in a way that detracts from the assurances of autonomy ostensibly offered.71 Certain of the provisions in Parts II and III of the Charter, however, in enabling states to regulate the extent of operation of the Charter, offer even stronger examples of opportunities to weaken its effect. In particular, Article 12 enables ratifying states, if they wish, to pick and choose between the substantive provisions by which they will be bound. This was a facility adopted during the drafting stages in the light of representations from many states on obligations which they would find incompatible with their own domestic rules.72 In the words of the Explanatory Report: The formulation of the principles of local self-government laid down in Part I of the Charter had to try to reconcile the wide diversity of legal systems and local government structures existing in the member states of the Council of Europe. Nevertheless, it is recognised that individual governments may still face constitutional or practical impediments to subscribing to particular provisions of the Charter.   70. See Chapter 5.   71. See also the discussion of Charter interpretation and implementation at 121 below.   72. See 24 above.

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This article accordingly adopts the ‘compulsory nucleus’ system first established by the European Social Charter, by providing that the Parties to the European Charter of Local Self-Government are required to subscribe to at least twenty of the thirty paragraphs of Part I of the Charter, including at least ten from a nucleus of fourteen basic principles. However, as the ultimate aim remains compliance with all the provisions of the Charter, the Parties are specifically enabled to add to their undertakings as and when this becomes possible.

Article 13 enables states to prescribe the categories of local (and regional) authorities to which the Charter is to extend; and Article 16 permits them to specify the Charter’s territorial extent. In addition, Article 14 provides, quite separately, for a duty on states to provide information – all relevant infor­ma­ tion concerning legislative provisions and other measures taken by it for the purposes of complying with the terms of the Charter – to the Council of Europe Secretariat.73 Articles 15, 17, and 18 contain formal provisions on signature, ratification and entry into force; denunciation; and notifications respectively. It is in Article 18 that it is declared that the English- and Frenchlanguage texts of the Charter are equally authentic.74 Potentially of greatest significance in terms of the opportunity to narrow the scope of the Charter’s application is Article 12. As the quotation from the Explanatory Report makes clear, that Article, echoing provision made in the European Social Charter,75 provides that each party undertakes to consider itself bound by at least twenty of the thirty paragraphs76 in Part I of the Charter, of which at least ten must be selected from a named list of fourteen paragraphs as follows: Article 2 (constitutional and legal foundation); Article 3, paragraphs 1 and 2 (concept of local self-government – ‘substantial share of public affairs’ and democratic basis and executive responsibility); Article 4, paragraphs 1, 2, and 4 (scope of local self-government – powers and responsibilities to be prescribed, ‘general competence’, ‘full and exclusive’ powers); Article 5 (protection of boundaries); Article 7, paragraph 1 (‘free exercise’ of functions);   73. At the drafting stages, the European Social Charter was relied on as a model for this obligation. For the significance of this formal requirement for Congress monitoring processes see 95 below.   74. See the discussion of the text of Article 5 at 52 above.  75. See 27 above.   76. Spread across the ten substantive articles.

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Article 8, paragraph 2 (administrative supervision to be normally confined to compliance with law and constitution); Article 9, paragraphs 1, 2, and 3 (financial resources – adequate, commen­ surate, and power to determine rate); Article 10, paragraph 1 (right to co-operate); Article 11 (legal protection). States must, when depositing their instruments of ratification, notify the Secretary General of the Council of Europe of the paragraphs they have selected [Article 12(2)] and the list may be subsequently expanded by further notification [Article 12(3)]. The Council of Europe Treaty Office website reveals that this facility has been used by a number of states. Malta, for instance, used it to expand its own level of commitment, expressly stating that this was in consequence of a recent legislative reform which had brought it into compliance with an additional four paragraphs.77 What is permitted by Article 12, therefore, is a potentially quite remarkable narrowing of a state’s commitment under the Charter.78 Not a single one of the Charter provisions is compulsory because even the ‘core’ list of fourteen offers choices. It has been described as a system of ‘positive à la carte provisons’.79 To be a fully compliant party, a state would not even have to commit to recognition of the principle of local self-government (Article 2), to a ‘substantial share of public affairs’ for local self-government [Article 3(1)], or to adequate financial resources for local authorities [Article 9(1)] because a state might choose to omit these from their selection of ten from the core group of fourteen. In fact, however, judging by the content of the list of declarations published on the Council of Europe’s Treaty Office website,   77. A full list of declarations is at: http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=122& CM=7&DF=23/08/2010&CL=ENG&VL=1 Latvia, having initially ratified in 1996, subsequently expanded its Charter commit­ment in 1999. Slovakia, having ratified in 2000, later added additional commitments in 2002 and 2007. Occasionally, a list of reservations may be modified to correct an error. The website records that Montenegro expanded its reservations in 2009 on realising that reservations intended at ratification had not been formally recorded.   78. For discussion of reservations in general treaty practice, see A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press, 2007), Chapter 8 on Reservations. For a study of the use of treaty restrictions in another specific area, see L. D. M. Nelson, ‘Declarations, Statements and “Disguised Reservations” with respect to the Convention on the Law of the Sea’ (2001) 50 ICLQ 767.   79. See S. S. Akermark, ‘Reservation Clauses in Treaties Concluded within the Council of Europe’ (1999) 48 ICLQ 479 at 504.

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practically all states have undertaken to be bound by all three of those provisions.80 Indeed, only a very small number of states have not signed up to all the inner core of provisions. Armenia, Georgia and Greece have declined to be bound by Article 5 (consultation in respect of boundary changes);81 Austria, Belgium, Greece, Montenegro and Switzerland have avoided commitment to Article 8(2) (normally restricting the supervision of local authorities to legal and constitutional considerations); Liechtenstein and Spain, to an extent, have omitted Article 3(2) (local self-government to be exercised by elected councils);82 and several states exempt themselves from one or another of the ‘core’ paragraphs of Article 9 (financial resources) – Andorra, Austria and Monaco [Article 9(2), resources to be commensurate to responsibilities]; and the Czech Republic, Liechtenstein, Malta, San Marino and Monaco [Article 9(3), part at least of resources to be from sources whose rate local authorities determine].83 Two states have taken the opportunity to exempt themselves from aspects of Article 4 (scope of local   80. The only apparent exception is Monaco which, in its declaration of 10 January 2013, excluded the application of both Article 2 and Article 9(1)(2)(3). The following statement was made:

The Princely Government recalls that the territory of the Principality, with a surface area of approximately 2 km2, constitutes only one municipality which is an autonomous institution established by the Constitution, endowed with legal personality and governed by public law. Therefore, the concept of local selfgovernment as stipulated in Article 3 of this Charter applies there, in Monaco, in light of the specific institutional and geographical characteristics of the country, within the framework defined by Title IX of the Constitution and by law No. 959 of 24 July 1974 on communal organisation as amended.

  81. In a rather odd (supplementary) statement on 25 February 2003, Cyprus declared: Referring to the European Charter of Local Self-Government and, more specifically, to its Government’s Declaration contained in the instrument of ratification deposited on 16 May 1988, the Republic of Cyprus declares that it considers itself bound by Article 5 of the said Charter.

  82. Spain’s restriction made in a declaration launched at the time of ratification (perhaps, therefore, of doubtful effect because no provision is made for quali­ fying the extent of a state’s commitment to a Charter paragraph) which states that Spain does not consider itself bound by Article 3(2) ‘to the extent that the system of direct suffrage foreseen therein should be implemented in all local authorities falling within the scope of the Charter’.   83. San Marino made the following statement (but to what effect?) on 29 October 2013:

The Republic of San Marino maintains that Article 9 of the Charter must be interpreted as an article establishing a general principle of financial autonomy, according to which local authorities are entitle to freely dispose, in the framework of the national economic policy, of the resources allocated to them for the exercise of their powers.

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self-government);84 and three others (Austria, the Netherlands and Turkey) have declined to be bound by Article 11 (legal protection).85 Thus, although the terms of Article 12 provide an opportunity for states to avoid signing up to four of the fourteen ‘core’ provisions, this is an opportunity that has, in practice, been taken very sparingly. And, indeed, at least seven states have expressly ratified the Charter without any ‘reservations’ at all under Article 12. To these, however, have to be added some fourteen further states which, despite the apparently mandatory terms of Article 12 requiring a list of binding paragraphs to be declared, have not deposited such a declaration. They are presumed – oddly perhaps in the light of the actual language of the Charter – to have signed up to the whole Charter. Beyond the exemptions from ‘core’ provisions already mentioned, there is no strong pattern of exemption from the other paragraphs of the Charter. Three states have confined their ‘opt-out’ to Article 7(2) (financial compen­ sation for councillors) – Cyprus, France and Romania.86 Turkey appears to be the only state to have confined its commitment to the Charter to the permitted minimum of twenty paragraphs. On the other hand, the United Kingdom is one of those states to have accepted the Charter’s substantive provisions in their entirety. In its ‘explanatory memorandum’ issued at the time of ratification87 it was declared that the Charter’s standards were ‘compatible with the existing and developing system of local government in the United Kingdom’ and that, for this reason, the United Kingdom proposed to be bound by all of its provisions.88 On the other hand, the United Kingdom’s deployment of Article 13 – the   84. Austria [Article 4(2)] and Switzerland [Article 4(4)]. Also in relation to Article 4, Romania has entered the following, rather curious, declaration: ‘Romania declares that, in accordance with its legislation, it understand the notion of regional authority, referred to in Art 4, paras 4 and 5, of the Charter, as the department authority of the local public administration.’   85. The Netherlands has also added a rider to its acceptance of Arts 6 and 9. Its statement was as follows: ‘With regard to Article 6, paragraph 2, of the Charter, the Government of the Kingdom of the Netherlands takes the view that, in the framework of the Charter, only Article 9 of the Charter has any bearing on the financial resources of local authorities. This means that local authorities may not take any financial claims on central government based on the provisions of Article 6, paragraph 2, of the Charter. In the opinion of the Government of the Kingdom of the Netherlands, Dutch legislation is in accord with both the wording and the purport of Article 6, paragraph 2, of the Charter.’   86. Until 1 December 2012 Bulgaria was also in this group. Switzerland has also opted out of Article 7(2).   87. Cm 3884 (1998).   88. Ibid. paragraphs 11 and 13.

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power to ‘specify the categories of local and regional authorities to which [a state party] intends to confine the scope of the Charter’ has been more significant. This is a provision to which only a small number of states have referred in their declarations on ratification. Belgium has confined Charter coverage to its provinces and municipalities (to the exclusion, by implication, of its regions and (language-based) communities) and has specifically excluded ‘Centres publics d’Aide sociale’ (cpas) on the territory of the Brussels– Capital Region; Denmark (since a modification to its declaration in 2007) has confined coverage to its municipalities (‘kommuner’) – to the exclusion of its new regions; France has restricted Charter coverage to ‘territorial authorities’ identified in the French constitution,89 to the exclusion of the ‘public establish­ ments of intercommunal cooperation’;90 Germany has confined the Charter to Gemeinden, Verbandsgemeinden and Kreise in Land Rhineland–Palatinate and to Gemeinden and Kreise in the other Länder; Ireland stipulates that the Charter covers its county councils, city councils and town councils; the Netherlands has confined coverage to its provinces and municipalities; Spain has confined coverage to local authorities regulated by its national law and Articles 140 and 141 of the Constitution; Sweden has confined coverage to municipalities (Kommuner), county councils (Landstingskommuner); and Switzerland has used Article 13 to extend Charter coverage to ‘the political communes (Einwohnergemeinde/comuni politici)’. The United Kingdom, however, has used Article 13 to identify the specific categories of local authorities covered by the Charter and, by doing so by reference to the different territories – in England, the county councils, district councils,91 London borough councils and the council of the Isles of Scilly; and, in Wales and Scotland, the councils constituted under the Local Government (Wales) Act 1994 and the Local Government (Scotland) Act 1994 respectively.92 It is expressly further stated that it is the understanding of the United Kingdom that the term ‘local authority’ in the Charter does not include ‘local or regional bodies such as police authorities which, by reason of the specialist functions for which they are responsible, are composed of   89. Article 72(1).   90. ‘epcis’. There is a clear formal logic in the adoption of the French definition of authorities covered by the Charter. On the other hand, the effect of the exclusion of epcis is the exclusion of institutions which, in practical terms, discharge a high proportion of local responsibilities in France.   91. This terminology appears not to have kept up with the widespread deployment of ‘unitary’ authorities in England.   92. Thus excluding parish and community councils and also the Common Council of the City of London (London’s tiny ‘square mile’), ‘given its unique and distinctive organisational and electoral arrangements’ (Cm 3884, paragraph 15).

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both elected and appointed members’.93 More controversially, however, the use of Article 13 to define the categories of authority covered by the Charter by reference to territorial criteria has the effect of altogether excluding Northern Ireland. The United Kingdom has not directly invoked Article 16 (but see below) in order expressly to delimit the territorial scope of the Charter to achieve the exclusion of Northern Ireland but that has, in effect, been achieved through Article 13. In 1998, it was stated by the British government that [f]or the time and being, it is . . . proposed not to apply the Charter to district councils in Northern Ireland, given the lesser range of functions currently assigned to local authorities in that country, compared with the rest of the United Kingdom. The Government reserves the right, however, to apply the Charter to local authorities in Northern Ireland in the light of future constitutional and political developments.94

Thus far, this position has not been changed. By its use of Article 13, the United Kingdom appears to have been granted a complete exemption from the Charter’s provisions in a significant part of its territory. It has to be asked whether this is an abuse of an article surely not intended to have been available to achieve that purpose. At all events, however, Northern Ireland is presumably the only area within the territory of a member state in the whole area of the Council of Europe to which such an exemption applies? And this singular exclusion of Northern Ireland has been a matter of concern to the Congress in recent years. On a visit to Northern Ireland in February 2012, the president of the Congress, Keith Whitmore, stated the Congress’s view that the time had come to extend the Charter to Northern Ireland.95 The 2014 Congress Recommendation sought (in remarkably restrained terms) a review of the United Kingdom’s declaration under the Charter.96 So far, the British government has resisted such calls.97 As to Article 16 itself, this permits ratifying states to specify the territory or territories to which the Charter is to apply. It is not a power which has been widely invoked. Denmark has declared that the Charter is not to apply to Greenland or the Faroe Islands. The Netherlands has confined coverage to   93. Cm 3884, paragraph 15. In England, the police authorities referred to were replaced, from November 2012, by police and crime commissioners.   94. Cm 3884, paragraph 16.  95. http://www.coe.int/t/congress/newssearch/Default_en.asp?p=nwz&id=6929 &lmLangue=1   96. Recommendation 353 (2014) paragraph 6(g).  97. See below for the broader effect of United Kingdom exclusions of Charter coverage.

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‘the kingdom in Europe’.98 Azerbaijan has declared that it is ‘unable to guarantee’ the application of the Charter in ‘the territories occupied by the Republic of Armenia99 until these territories are liberated from that occupation’. In rather similar vein, Georgia (on ratification in 2005) declined responsibility for performing obligations under the Charter in ‘the territories of Abkhazia and Tskhinvali Region’.100 Cyprus has not, on the other hand, recorded a statement under Article 16 in respect of the (Turkishcontrolled) northern sector of the country, but the so-called ‘Turkish Republic of Northern Cyprus’ is effectively excluded from Charter coverage.101 Nor is there any such statement by Moldova in respect of Transnistria.102 Kosovo and (since March 2014) Crimea are other gaps in the European patchwork. As mentioned, no express statement under Article 16 has been published on the Council of Europe Treaty Office’s website by the United Kingdom. On the other hand, the effect of the territorial designation (under Article 13) of local authorities has had an exclusionary effect in relation to Northern Ireland. In the United Kingdom’s own explanatory memorandum on ratification, there is also a reference to the same effect being achieved – this time, directly invoking Article 16 – in respect of the United Kingdom’s dependent territories, in view of the ‘limited role of local government in those territories’.103 What is probably most interesting about the consequences of the United Kingdom declarations taken as a whole, is that the United Kingdom becomes responsible for a range of territorial exclusions from Charter coverage. Not only is Northern Ireland excluded but so too are the Isle of Man, all the Channel Islands and, as ‘British Overseas Territories’ (but nevertheless within Europe), Gibraltar and the ‘sovereign bases’ on Cyprus – Akrotiri and Dhekelia. In recent years the Congress has pursued a number of parallel initiatives which have in common the notion of a ‘100% Charter’. At the highest level, this meant securing the signature and ratification of the Charter by all   98. On the other hand, nothing in the French declaration expressly confines Charter coverage to Europe. Though the Congress is presumably unlikely to concern itself with local autonomy beyond Europe, the French extension of the Charter to ‘territorial authorities’ formally embraces the overseas departments.  99. Nagorno Karabakh is the disputed territory currently under the effective control of Armenia. 100. To which might be added South Ossetia which, since 2008, has been under Russian control. 101. Though the Cyprus-monitoring report and Recommendation of 2005 did include reference to the north of the island. See Recommendation 178 (2005). 102. Or the Pridnestovian Moldavian Republic. 103. Cm 3884, paragraph 17.

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member states of the Council of Europe,104 and this was, indeed, the ambition successfully achieved by the ratifications of Andorra (2011), Monaco (2013) and, since February 2014, San Marino. Even complete Council of Europe coverage still omits, of course, Belarus and, another state with geographic European credentials, Kazakhstan. But these are not, in any practical sense, targets within the Congress’s sights. The same applies to the Vatican City and the other territories beyond the boundaries of member states.105 And nor is there much scope for progress in most of the other territories discussed in the last paragraph which are formally within the boundaries of member states but beyond their political control. This leaves the United Kingdom as a remaining principal target in respect of Northern Ireland.106 Experience of the operation of the Charter, and especially of the monitoring process, has led the Congress towards a position of increasing intolerance of the continued adherence by states to their existing portfolios of Charter reservations, especially the declarations excluding the application of its substantive provisions. It has been noted that individual states have modified their declarations107 but, in October 2011, the Congress adopted a Recommendation on Reservations and Declarations to the Charter108 which asked the Committee of Ministers to invite states to review their declarations and remove those no longer thought to be necessary. In its response,109 the committee agreed and encouraged states to consider extending the scope of their undertakings under the Charter. Congress monitoring teams are now specifically mandated to explore the lifting of Charter coverage restrictions.110 D PROTOCOLS TO THE CHARTER During the whole period from the Charter’s promulgation in 1985 up to the twentieth-birthday celebration conference in Lisbon in 2005, the text of the Charter remained unaltered. Various perceived problems with the text of the Charter had been noted in the years of Charter monitoring but it was 104. The State of the Congress 2011, p. 10. 105. Though there must be some possibility that the Charter’s reach could be extended (as does that of the echr) to, for example, the Isle of Man and the Channel Islands. 106. See also 118 below. 107. See 70 above. 108. Recommendation 314 (2011). See also Resolution 330 (2011). 109. CM/Cong(2013)Rec314 final. The Committee of Ministers also referred in its response to its own (current) review of reservations to Council of Europe treaties at large. See also 171 below. 110. See 101 below.

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probably the birthday celebration itself 111 which prompted the Congress eventually to take action on two fronts.112 In the first place, it was thought that, in line with provision made in some other Council of Europe treaties, the opportunity to accede to the Charter should be extended, on the one hand, to the European Community/Union and, on the other, to states that were not members of the Council of Europe.113 This would have been done by the adoption of an amending protocol to the Charter. Secondly, there was a proposal for, in this case, an additional protocol, which would have fleshed out the existing Charter provisions in the interests of clarifying some of its rules and principles to make more explicit the standards already considered in the monitoring process to be implicitly embedded in the Charter. Both these projects reached the stage, in 2007, of being incorporated in Recommen­ dations of the Congress to the Committee of Ministers114 but, in the event, neither recommendation found favour with the Committee of Ministers which (by 2009) was more inclined (with Congress assent) to promote a quite separate measure which, in due course, became the Additional Protocol on the Right to Participate in the Affairs of a Local Authority. That protocol, the only one of the three initiatives to achieve legal force, is considered below but, 111. There were also at the same time, however, cautionary words. Francesco Merloni, then chair of the Group of Independent Experts, spoke of the ‘revision’ of the Charter by three possible avenues: formal amendment of the Charter; new protocols; or updating the Explanatory Report. Both Charter amendment and the addition of protocols would give rise to major difficulties of interstate negotiation and, in the case of the adoption of protocols, the risk of the rise of differentiation between states. See The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006), pp. 48–9. 112. Rule 69 of the Congress Rules of Procedure (Revision of the Charter) provides that, without prejudice to the respective rights of the Committee of Ministers and the Parliamentary Assembly, the Congress may submit proposals to amend the Charter to the Committee of Ministers for decision. 113. In paragraph 11 of the Draft Explanatory Report appended to Recommendation 218 (2007) below, examples of Council of Europe treaties open to the European Community included the Convention on Human Rights and Biomedicine (1997), the Criminal Law Convention on Corruption (1999), the Convention on the Prevention of Terrorism (2005), and the Convention on Action against Trafficking in Human Beings (2005). Paragraph 13 of the same report listed many treaties as open to non-member states including the European Cultural Convention (1954), the European Convention on Extradition (1957), the European Charter for Regional or Minority Languages (1992), the Framework Convention for the Protection of National Minorities (1995), and the Criminal Law Convention on Corruption (1999). Protocol 14 to the echr provides for European Union accession. 114. As Recommendations 218 (2007) and 228 (2007) respectively.

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first, the other two projects deserve brief consideration. The door has not been closed on the sort of measures they envisaged. And, procedurally at least, the story of their abandonment, for the time being, throws light on relationships between the different organs of the Council of Europe which are of continuing significance. The draft amending protocol appended to Congress Recommendation 218 (2007) would have opened up the Charter (principally by the amendment of Article 15) to accession by (a) the European Community and (b) nonmembers of the Council of Europe.115 In the case of the European Community, this was not a new idea. As early as 1988, Resolution 187 of the then Standing Conference of Local and Regional Authorities had requested the Committee of Ministers to invite the Commission of the European Communities to consider accession. Then, Congress Recommendation 20 (1996) invited the Committee of Ministers to respond to a request116 that a protocol enabling accession by non-member states be drawn up. The draft amending protocol of 2007 would have simply enabled European Community accession. On the other hand, accession by a nonmember state would have involved a process of consultation both with state parties to the Charter and with the Congress and then a majority vote of the Committee of Ministers and a unanimous vote of the representatives of the parties to the Charter entitled to sit on the Committee of Ministers. The draft protocol did not, in terms, stipulate any restrictions on the list of nonmember states which might be considered for membership although Congress Resolution 195 (2005) on the ‘20th Anniversary of the European Charter of Local Self-Government’117 had spoken of ‘opening the Charter to states that are located in the immediate vicinity of Council of Europe member states but are not Council of Europe members themselves and have democratically formed local authorities’. The response from the Committee of Ministers came in two stages. In the first place, the committee offered an interim reply in May 2008 which noted simply that it had referred the recommendation to the European Committee on Local and Regional Democracy (cdlr)118 which, in turn, had reported that a majority of its members was ‘positive in principle’ to the opening up of the Charter to non-member states and to the European Community. The 115. The general Council of Europe rules on accession by non-members to treaties are published at: http://www.conventions.coe.int/?pg=/general/IntroAccess NMS_en.asp 116. Supported by Recommendation 1285 (1996) of the Parliamentary Assembly. 117. Supported, as to non-member state accession, by Recommendation 1779 (2006) of the Parliamentary Assembly. 118. For the cdlr see 12 above.

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cdlr had, however, raised a number of questions about the project and sought broader terms of reference to consider them further. The second stage of the Committee of Ministers’ response came when the results of the cdlr study were known. The ministers, while encouraging efforts to promote the concept and value of local self-government beyond the borders of the Council of Europe member states, endorsed the cdlr position that the amending protocol should not be further pursued. There had been a negative reaction from the European Commission (on the grounds of lack of community competence) as well as from representatives of European Community member states to the proposal that the community might accede. In respect of the accession of non-member states, the cdlr view was again negative. It was noted that the process of obtaining the agreement of all member states was one that was likely to take ‘several years, at least’. More importantly, the cdlr took the view that adherence to the Charter should not be envisaged by a state that was not, at the same time, bound by the echr. Because the echr was not open to accession by non-member states, that condition could never be satisfied. Progress on this first Congress initiative was blocked. It may, however, be noted in passing that, well short of a formal extension of the Charter’s provisions to them, the Congress has always adopted an outgoing policy on friendly relations with states of an apparently democratic disposition. At the May/June 2007 Session of the Congress, for instance, delegations from Morocco, Japan and Mexico were invited to address the Congress Chambers and, in 2012, a Congress delegation visited Tunisia.119 As to the proposal for an additional protocol to expand the scope of some Charter articles, the preamble to Recommendation 228 (2007) opened with a brief introduction to the Charter itself, the proposed new protocol appended to the recommendation, and a reference to the Lisbon (Twentieth Anniversary) Conference. It went on to list the body of ‘standards, rules and interpretations’ of the Charter, as adopted by the Committee of Ministers and the Congress, on supervision and financial resources,120 on monitoring the implementation of the Charter,121 on the domestic incorporation of the Charter122 and legal protection,123 on finance,124 on relations between the public, the local assembly/ 119. See also the creation of ‘partner for local democracy’ status by Congress Resolution 376 (2014). Morocco has subsequently progressed towards the achievement of that status. 120. Committee of Ministers Recommendations (1998) 12; and (2000) 14 and (2005) 1, respectively. 121. Congress Recommendation 2 (1994). 122. Congress Recommendation 20 (1996). 123. Congress Recommendation 39 (1998). 124. Congress Recommendations 64 (1999) and 79 (2000).

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council and the executive,125 on municipal property,126 on directly elected local executives (mayors),127 and on consultation.128 Later, the preamble asserted the belief of the Congress that the experience of monitoring the Charter (in which the Group of Independent Experts129 was said to have played an important role) had demonstrated the need to reinforce further the international protection of local self-government and to develop and supplement the Charter, either by inserting new provisions or by clarifying the Charter’s rules and principles. The way in which this was to be done was demonstrated in the substantive provisions in Articles 2–14 of the draft protocol. There were thirty-three paragraphs in these articles, and states would have been invited to subscribe (presumably, with a view to reducing the variety of state commitment) to at least twenty-four of them. Because the draft protocol did not ultimately proceed to adoption and implementation, the detailed content of the provisions need not be set out in full. It should be said that the draft was certainly rather long (longer, in fact, than the Charter’s original text) and complex, which may be among the factors that led to its ultimate rejection. Its terms do, however, throw light on many of the Charter issues that had been encountered in the monitoring process, some of which had been addressed in the recommen­ dations already referred to. Many of the terms of the draft protocol are mentioned in the earlier discussion of the content of Charter provisions. In brief, the draft protocol reinforced the assumption that Charter provisions operate as much to protect against regional (or federal) authorities as against central governments (Article 2); it provided for the accountability of directly elected mayors to councils/assemblies in matters of ‘prime importance’ (Article 3); and it reinforced the freedom of local authorities to determine their own institutional structures (Article 4). Several Articles (Articles 5 and 7–10) sought to strengthen the financial resource provisions of the Charter, for example, to require a ‘substantial proportion’ of financial resources130 to be derived from charges determined by local authorities them­ selves. Article 6 asserted a right to acquire and utilise property. Article 11 would have strengthened the rights of authorities to prior notification and consultation on matters of concern to them. Also to be strengthened were local authority protections against external administrative supervision (Article 12) and the imposition (substitution) of central decisions (Article 13); 125. Congress Recommendation 113 (2002). 126. Congress Recommendation 132 (2003). 127. Congress Recommendation 151 (2004). 128. Congress Recommendation 171 (2005). 129. See 12 above. 130. Rather than merely ‘part at least’ under Article 9(3) of the Charter.

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and the right to an effective judicial remedy to enforce Charter and protocol provisions (Article 14) – a right not currently offered by Article 11 of the Charter which is confined to the enforcement of rights contained in domestic constitutions and legislation. The draft protocol made no headway with the Committee of Ministers.131 The committee supported views expressed by the cdlr to the effect that the draft was a detailed mixture of provisions which, on the one hand, improved the existing wording of the Charter and, on the other hand, sought to amend it – something that was impermissible in an additional (as opposed to an amending) protocol. Further work on the draft would not be a profitable use of time or other resources. Instead, the cdlr would be asked to examine whether there were, indeed, issues that might be proposed for inclusion in a new draft additional protocol. One such proposal had, in fact, been flagged up in Recommendation 228 from the Congress where it referred to the efforts of the cdlr to ‘strengthen the participation of citizens in public life at local level by developing convention-based standards in this area’.132 And it was, indeed, this proposal that was taken forward to become the Additional Protocol to the European Charter of Local Self-Government on the Right to Participate in the Affairs of a Local Authority which was adopted and opened for signature at the Conference of Ministers held in Utrecht on 16 November 2009. The protocol formally took effect from 1 June 2012 when the eighth ratification (Norway’s) was lodged. Currently,133 the protocol has attracted eighteen signatures and twelve ratifications overall. One of the early signatories (but still without ratification) was the United Kingdom. As elaborated in the Explanatory Report on the Protocol, its origins are said to derive from the Charter’s own preamble which recognised that the right of citizens to participate in the conduct of public affairs was one of the democratic principles shared by all Council of Europe states.134 Though it might be supposed that this right was, indeed, given recognition by the Charter in the provision it makes to guarantee the autonomy of freely elected local authorities, the report goes on to say, correctly in this narrower sense, that the Charter does not include substantive provisions on the topic of public 131. CM (Cong) Recommendation 228 interim final, 16 February 2009. 132. Recommendation 228 (2007), paragraph 9. 133. January 2015. 134. For an argument powerfully in support of the additional protocol drawing support from the Charter’s preamble, see J. Smith in The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006) p. 27. It may also be recalled that an early Congress document (Opinion No. 6 of 1957) had attached as much importance to the rights of citizens to local democracy as to the rights of local authorities. See 19 above.

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participation – although Article 3(2) of the Charter does provide that it ‘shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute’. Instead, it claims that the additional protocol is, in terms of standard setting, the culmination of more than two decades of intergovernmental work by the Council of Europe, citing in support resolutions of Conferences of European Ministers at meetings in 1978 (Stockholm) and 1980 (Madrid), as well as several recommendations of the cdlr between 1981 and 2001.135 Steps had then been taken at the Conference of Ministers in Budapest in 2005 and, in the same year, by the Summit of Heads of State and Government in Warsaw to examine the desirability and feasibility of introducing convention-based legal standards on citizen participation at local and regional levels. And finally, the Ministerial Conference of 2007 requested the preparation of such standards as a draft additional protocol to the Charter and this was taken forward by the cdlr with the assistance of its subcommittee of experts on democratic participation and public ethics136 and, in due course, approved by the Utrecht Conference of Ministers in November 2009. The essence of the protocol is contained in Articles 1 and 2137 which, on the one hand, proclaim the obligation on parties to ‘secure to everyone within their jurisdiction the right to participate in the affairs of a local authority’138 and then to ‘take all such measures as are necessary to give effect to the right to participate in the affairs of the local authority’.139 Article 1 seeks further to flesh out the right to participate by defining it as denoting ‘the right to seek to determine or to influence the exercise of a local authority’s powers and responsibilities’.140 But, beyond that unremarkable proposition, a further requirement that the right be facilitated without discrimination, and a specific right of nationals to vote and stand as candidates in local elections,141 all is wholly dependent upon rights (including broader rights to vote) already secured within states by international or domestic legal rules. Article 2 elaborates on the requirement to provide the means for securing the general right. ‘Measures’ to achieve this may include: inter alia local consultations, local referendums and petitions, rights of public access to official documents 135. Recommendation (81)18, Recommendation (96)2, Recommendation (2001)19. 136. The ‘LR–DP’, subsequently the ‘LR–GG’(Good Democratic Governance). 137. Article 3 enables parties to specify the local and regional authorities to which the protocol is to apply (the default being all local authorities); Article 4 enables the specification of territories to which it applies; and Articles 5,6 and 7 deal with formal matters. 138. Article 1(1). 139. Article 2(1). 140. Article 1(2). 141. But without any extension parallel to the European Union rule enabling all EU nationals to vote in local elections in EU states. See 40 above.

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(but not, it seems, access to meetings!), and complaints procedures. All such measures are, however, only permissive, and it is very difficult to identify anything specific which is actually demanded of state parties – beyond the generality of ‘securing’ the right. As the Explanatory Report states, it was felt that the Charter, which commits the Parties to applying basic rules guaranteeing the political, administrative and financial independence of local authorities, should also offer member States Party to the Charter the possibility to extend the scope of their international legal obligations to include certain rights for individuals at local level . . . By adding rights of individuals to the possible substantive provisions of the Charter its role as a beacon for democracy can only be enhanced.

Whether this offering to states of a ‘possibility’ to extend their obligations will achieve the aims sought by the protocol remains to be seen. And, despite the complementarity asserted by the Explanatory Report between the protocol and the Charter itself, it is not obvious that the protocol is made entirely in the spirit of the Charter. Indeed, it could be seen as tending to confer obligations, rather than greater freedom, on local authorities.142 It has to be noted, however, that Article 2(4) of the protocol does require that national measures to implement it must be accompanied by the consultation of local authorities, insofar as possible, in due time and in an appropriate way. At all events, the additional protocol on public participation stands alone, so far, as a formal supplement to the Charter’s text. The Congress signalled in 2013, however, a wish to revisit the question of reforming the Charter by updating it and adapting it to meet the changed conditions of the early twenty-first century.143 142. This was, indeed, a point directly acknowledged by Jeremy Smith, then Secretary General of the Council of European Municipalities and Regions (cemr), at the time of the Charter’s twentieth anniversary in 2005. See The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006) pp. 29–32. He explained that, at that time, a common conclusion had been reached. It was felt by most people that the existing Charter should remain an instrument that defined the rights of local governments in relation to central governments. It should not, on that view, include any obligations, or commitments, of local governments towards their citizens. His own view, nevertheless, was that, as a practical matter, there had to be a way of ensuring that local government not only secured its own ‘rights’ but also responded to the demands of citizens for good governance, including the provision of costeffective services and citizen participation in decision-making. 143. See 193 below. For a joint declaration by the Congress and the Council of European Municipalities and Regions (cemr) containing the announcement of this initiative in November 2013, see https://wcd.coe.int/com.instranet.Instra Servlet?command=com.instranet.

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4 The Institutions and Procedures of Charter Implementation and Enforcement

A INTRODUCTION At the drafting stage, many of the terms of the Charter were deliberately cast in language which was both general and rather vague.1 We have also seen that states were given a generous latitude in the degree to which they signed up to the Charter’s obligations.2 Subject to these qualifications, however, it was intended that the Charter should be treated as imposing real and binding obligations on ratifying states. It was no mere declaration of intent; no mere symbol of the ratifying states’ democratic aspirations. The Charter was to be a serious, treaty-based and legally binding guarantee of the autonomy rights that it proclaimed for local authorities, and the expectation was that the principal means whereby those guarantees might be enforced would be through the Council of Europe’s own monitoring of the application of the Charter and the collective pressure of the Council’s members which could be brought to bear. Those monitoring procedures and, in particular, the lead role of the Congress of Local and Regional Authorities in them are discussed below in Section D below. Section E contains a note on a selection of recent monitoring recommendations as well as on the two United Kingdom monitoring recommendations issued so far.3 Another possibility, however, was that the Charter might become enforceable (on the initiative of local authorities themselves or otherwise) in the domestic courts of the countries to which it applied.4 There is no direct parallel between the Charter and, for instance, the European Convention on    1. See Chapters 2 and 3. 112. See Chapter 3. 113. For more detailed treatment of Charter interpretation in the course of monitoring, see Chapter 5. 114. For a recent review of the general position of the reception of international law into domestic law, see P. Sales and J. Clement, ‘International Law in Domestic Courts: the Developing Framework’ (2008) 124 LQR 388.

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Human Rights or the Treaty on European Union (and the Treaty on the Functioning of the European Union) but those regimes have, in their different ways, produced rights and obligations which are now to be regarded as, first and foremost, enforceable in the domestic courts of the member states. The extent to which that might also be the case, even if to only a more limited degree, in relation to the Charter should also be examined. We have already taken note of Article 11 of the Charter which provides for the ‘legal protection of local self-government’ in the form of a right of recourse of local authorities to a ‘judicial remedy in order to secure a free exercise of their powers and respect for such principles of local selfgovernment as are enshrined in the constitution or domestic legislation’. This is not, however, a provision which purports to make the Charter’s terms (or those to which an individual state has acceded) directly enforceable in the domestic courts of a state. It does not in itself ‘incorporate’ the Charter.5 What we have to examine, therefore, is the extent to which the Charter, by virtue of its status as an international treaty, is nevertheless capable of achieving domestic recognition by domestic courts. This is a question addressed in Section B below and we shall find that states vary widely in the degree of domestic judicial recognition that the Charter commands. There follows, in Section C, a brief further study of the United Kingdom position on Charter status. Here we shall find that, on the general spectrum of Charter recognition in domestic law, the United Kingdom is very much towards the non-recognition end of the scale. That, however, needs a little more exploration which should be undertaken against a constitutional and political backdrop that has seen a revived interest in some quarters in providing a measure of constitutional ‘entrenchment’ of local government, whether by raising the profile of the Charter or otherwise. B THE RECEPTION OF THE EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT IN THE LEGAL SYSTEM OF RATIFYING COUNTRIES The question of the domestic status of the Charter is an issue which has been raised within the Council of Europe at a number of points in the Charter’s history. Specifically, it has been the subject of recommendations and resolutions of the Congress. Already by 1994, a Congress recommendation on monitoring the implementation of the European Charter of Local Self  5. A provision in the Congress draft additional protocol of 2007 would have extended the scope of Article 11 to the legal protection of Charter, as well as domestically protected, rights. See 81 above.

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Government6 had noted that ‘recourse to domestic courts in cases of nonconformity of national legislation with the Charter is not always possible’.7 It noted ‘difficulties’, stemming from the fact that (a) in certain countries the Charter has not been incorporated into domestic law, whereas this incorporation has taken place in other countries; (b) consequently, recourse to domestic courts in cases of non-conformity of national legislation with the Charter is not always possible; furthermore, where recourse is possible, the courts do not always have the powers to set aside the non-conforming legislation; (c) the wording of certain articles of the Charter is such that their implementation requires supplementary national legislation, whereas other articles can be directly invoked before the courts of the countries having incorporated the Charter into their internal law.

In 1998 the Congress issued a recommendation8 on the Incorporation of the European Charter of Local Self-Government into the Legal Systems of Ratifying Countries and on the Legal Protection of Local Self-Government. The recommendation drew on the (Woehrling) report – ‘The Reception of the European Charter of Local Self-Government in the Legal Systems of Ratifying Countries’.9 This insisted that the Charter ‘should not be regarded as a set of non-binding recommendations but as an international treaty with legal force establishing duties for the States that have ratified it and rights for the local authorities belonging to those states’; that several Charter provisions should be regarded as directly applicable legal rules; that other provisions must be interpreted in the light of Charter monitoring already carried out;10 and that it was essential to incorporate the Charter into the domestic legal system by means of a formal acknowledgement of incorporation. More recently, in 2010, the Congress returned to the question of incorporation, and a further report11 was commissioned from a team headed by Professor Francesco Merloni, (then) Chairman of the Group of Independent Experts.12 This was able to take account of the many changes   6. Recommendation (2) 1994.    7. See also the Report of the Conference on the Charter of Local Self-Government (Barcelona, January 1992), Studies and Texts No. 27, Standing Conference of Local and Regional Authorities (1993), which had a substantial emphasis on domestic judicial application.    8. Recommendation 39 (1998).   9. CPL/GT/CEAL(3)22.   10. For monitoring, see Section D below.   11. CPL(21)2.   12. CG/INST/GIE(18)2. For the Group of Independent Experts, see 12 above, 103 below.

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since 1998. The twentieth anniversary of the Charter had been celebrated;13 there had, therefore, been much more experience of Charter monitoring; a Charter culture was developing; whereas the 1998 report had drawn on the position in twenty-one countries, the new report could take account of a further twenty-three which had ratified the Charter more recently – several from western Europe (including Belgium, France, Iceland, Switzerland and the United Kingdom), and many others from eastern and south-eastern Europe. The report first addressed the preliminary question of national declarations and ‘reservations’ under the Charter and was sceptical of the need for countries to persist in adhering to many of the reservations they had declared on ratification.14 On the substance of reception, the report noted the historic significance of the distinction between countries with the ‘monistic’ and, on the other hand, the ‘dualistic’ traditions of reception. Whereas the ‘monistic’ tag implied that the reception of treaty terms into domestic law was an automatic process, in ‘dualistic’ countries, recognition by domestic courts required a prior act of incorporation. This distinction, however, was claimed by the report to be of declining significance. It might be one factor in determining the status of the Charter but was subject to other measures taken within states to produce a situation in which, across Europe, there was a marked division between, on the one hand, those countries that recognised the international obligations created by the Charter (what the report, perhaps ambiguously, calls its ‘exclusively binding effects’) but did not recognise any domestic direct applicability of its terms; and, on the other hand, those countries in which, whether automatically or by some deliberate act of incorporation, the Charter has achieved the status of being directly applicable in the country’s courts. Within those two broad categories, the report, with a high degree of sophistication, spells out a number of subdivisions – distinguishing, for instance, in a first group, between those countries which, simply because of their dualistic heritage, leave the Charter as internationally binding only; and, on the other hand, those which, while still dualistic, have recognised the Charter domestically but not in such a way as to render it directly applicable in the courts. Among those countries where the domestic applicability of the Charter is recognised, the report distinguishes (again with some ambiguity) between those cases where it is applicable but cannot be relied on directly in courts and, on the other hand, those countries (enjoying a ‘high level’ of reception) where the Charter can be relied on directly in the courts. It is a complex picture that combines and merges questions of the   13. Indeed the twenty-fifth anniversary was noted at the same Congress session that the Merloni report was presented.   14. On ‘reservations’ generally see Chapter 3.

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domestic recognition of international law, the existence of constitutional (and ordinary) courts to apply that law, and the rights of access (or lack of such rights) of local authorities. The rapporteur goes out of his way (paragraph 105) to say that the different ‘levels’ of reception imply no value judgement on the quality of local and regional democracy in the countries considered but he makes it clear nevertheless that the current degree of variation of practice is unacceptable and should be addressed by a complex series of measures to make Charter standards more precise and ‘self-executing’. In the result, the Congress’s resolution15 was of more limited scope. It asked its Governance Committee to draft guidelines on the current interpretation of Charter provisions and its Monitoring Committee ‘to systematically examine the issue of the reception of the Charter during its country monitoring visits’ and ‘to raise awareness among the judicial bodies that monitoring delegations meet during their visits of the need to base their decisions on the Charter, or on the domestic law related to its reception, in cases relating to local democracy’. Perhaps more importantly, because a judicial response is likely to need an initiative from parties to a case, the resolution also invites associations of local authorities to, inter alia, ensure that local authorities are aware of their options of recourse to the courts in cases of suspected non-compliance with the Charter. The resolution also encourages associations to work with national authorities to ensure that the Charter is available in national, regional and minority languages. Copies of such translations are to be deposited with the Council of Europe Treaty Office for public access.16 Though not a direct criticism of either the report or the resolution – perhaps neither was intended to address this question – one important gap in both is any evidence, one way or the other, of the actual impact of the direct application of the Charter in constitutional or other courts in those countries where that is formally available. It is one thing to assert with approval a ‘higher level’ of reception, and for the Congress in its resolution to encourage the direct applicability of the Charter in the courts of all states, but the evidence for the beneficial deployment of the Charter in this way seems to be slight. Without detailed investigation,17 it is impossible to know what the   15. Resolution 331 (2011).   16. A recent inspection of the treaty office website demonstrates the availability of the Charter in some twenty-seven ‘national’ languages (in addition to the official English and French versions) but, with the exception of those national languages which have ‘regional or minority’ status in other countries, there are no additional ‘regional or minority’ language translations. There is, for instance, no sign of a Welsh or Gaelic version.  17. This is not an issue comprehensively treated in the process of Charter

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actual consequences of reception at a ‘high level’ have been. It is clear that, across most of the continent, there is an absence of a significant number of decided Charter cases in national courts but we do not know exactly what has caused it and what is demonstrated by it. There have been indications of the degree of Charter recognition in some countries. In Denmark, for instance, where the Charter has the force of a legislative act ‘which means that the legislature is bound to respect it, unless the legislature chooses to renounce the Charter by a law’. On the other hand, ‘the Charter has not had much impact in Denmark and it has only been relied on in legal argument once’ – in a case in which the Charter-based argument was rejected.18 One source of difficulty with the direct application of the Charter in national courts is its legal status and especially, despite formal reception into the legal system in monist states, the question of whether its terms can be directly applied.19 In some countries, however, this appears to be not a problem. In Estonia, for instance, the Charter is treated as directly applicable.20 In Latvia the Association of Local and Regional Governments of Latvia has used the Charter in the Constitutional Court as a legal source;21 and, in Luxembourg, the Charter has a status superior to that of ordinary domestic

monitoring. There have been some signs in monitoring reports of the direct application of the Charter by constitutional courts – though the evidence of the Charter adding much to domestic constitutional or other law seems to be slight. But see, for example, the reference to the Estonian Supreme Court decision in paragraph 42 of the Report on Local and Regional Democracy [CPL (19) 5] attached to Recommendation 294 (2010). The judgment relied principally on the Estonian Constitution but with some supporting references to the Charter. In the report on Italy [CG (24) 8] attached to Recommendation 337 (2013), it was stated that the Charter had been cited in a limited number of cases in the Constitutional Court, although in no cases had the Charter been determinative of the issue before the court.   18. See E. Greve, ‘Local Government in Denmark’ in A.-M. Moreno (ed.), Local Government in the Member States of the European Union: A Comparative Legal Perspective (National Institute of Public Administration, Spain, 2012) (hereafter ‘lgmseu’) at pp. 137–8.   19. A problem of reception/incorporation of a quite different kind may arise. The Charter is, in principle, applicable in the courts – though there may be doubts as to the constitutional validity of its ratification. The Charter’s force derives from a federal law, while local government is a competence of the Länder. On the other hand, the Charter may still be available as an interpretative instrument. See D. Schefold, ‘Local Government in Germany’, in lgmseu at p. 235.   20. See S. Mäeltsemees, ‘Local Government in Estonia’, in lgmseu at p. 162. See also note 17 above.  21. See especially Case No. 2007–21–1. http://www.satv.tiesa.gov.lv/upload/de_ 2007-21-01.htm See I. Vilka in lgmseu at pp. 367–8.

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law and to have self-executing effect.22 In Austria, however, it was acknowledged in the parliamentary process which led to ratification that ‘the Charter would need special modification by domestic laws to become directly applicable.23 Similarly, in Finland, the provisions of the Charter are thought to be ‘too imprecise and vague to have direct legal effect, or to be the sole basis for a judgment in an individual case. It is more likely that the role of the provisions would be to serve as legal principles to inform and influence the interpretation and application of domestic statutes.’24 A similar approach has been adopted in Cyprus. The Charter’s terms are too vague to be directly applicable and the Supreme Court25 has held that it does not ‘have as its direct aim the recognition and guarantee of individual rights and freedoms for legal entities in a manner that these rights and freedoms could be raised before national courts’.26 And in the Czech Republic the Constitutional Court has held that ‘the Charter is not a common international treaty on human rights, there are no rights of individuals, but rights of community (of citizens) and . . . the rules laid down by this Charter, which create a European standard of local self-government, are hardly self-executing’.27 Similarly in Poland the Charter has been invoked in the Constitutional Court on about twenty occasions and in three of which the court upheld a challenge on the grounds of Charter incompatibility. But, in all cases, with the Charter basis of the decision considered to be subsidiary to grounds based on the Polish constitution. In one such case, the court held that ‘the provisions of the Charter, because of its general nature, may, only to a limited extent, serve as a basis for direct examination of the conformity of domestic law to the Charter’.28 In the administrative courts, it has been held that no Charter provisions are self-executing because it is ‘a set of rules of a general nature indicating the desired action of the signatories for the purposes indicated in the Preamble’.29 In Romania, too, there are doubts about the extent to which the Charter is directly applicable or of direct effect. Equally, its status as ‘organic law’ is of doubtful effect. On the other hand,

  22. J. M. Goerens, ‘Local Government in Luxembourg’, in lgmseu at p. 413.   23. See A. Gamper, ‘Local Government in Austria’, in lgmseu at p. 21.   24. See O. Mäenpää, ‘Local Government in Finland’, in lgmseu at p. 187.   25. Pantelides v. Leantzi (1991) 3 CLR 293.   26. See G. Coucounis, ‘Local Government in Cyprus’, in LGMSEU at p. 98.   27. Pl. ÚS 34/02 (5 February 2003). See S. Kadečka, ‘Local Government in the Czech Republic’, in lgmseu at p. 115.   28. Case No. K 24/02 (18 February 2003).   29. Regional Administrative Court of Warsaw, Case No. III SA/Wa2459/06. See M. Kulesza and D. Sześciło, ‘Local Government in Poland’, in lgmseu at pp. 489–90.

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the obligations imposed by the Charter are reflected in Romanian law as a source of inspiration for relevant domestic legislation . . . Presently, many national provisions simply copy the articles of the Charter even though they were already incorporated in national legislation when the Charter was ratified. Recent revisions of statutes on local public administration were written to provide better compatibility with the principles enumerated in the [Charter], by simply restating its provisions. Thus, the Charter is neither directly applicable nor applied, but domestic legislation is continuously adapting to its requirements.30

And in Spain the Charter is part of the law of the land. It has been important. ‘From a historical point of view, it inspired the national basic legislation . . . On the other hand, it has frequently been used as an interpretative authority by the courts. Nevertheless, the fact that most of its provisions do not have a self-executing nature prevents the Charter from being applied directly in the courtrooms.’31 In the Netherlands the distinction between Charter provisions which are self-executing and those which are not is recognised.32 In the light of these uncertainties, we simply have to recognise that, even in those countries where the Charter has been formally incorporated into their legal systems – whether automatically or by specific adoption – the prospect of the application of the Charter by courts cannot, of itself, be assumed to be a guarantee of the better overall implementation of the Charter’s provisions. C THE STATUS OF THE CHARTER IN THE UNITED KINGDOM Unsurprisingly, the United Kingdom appears in the 2010 Congress report as one of those countries offering the lowest formal status to the Charter in its domestic legal systems. The country’s dualistic approach to the incorporation of treaties means that there could be no automatic reception of the Charter. The absence of a written constitution means the lack of an easy mechanism to incorporate some or all of the Charter’s provisions, even if that were thought desirable. Traditions of legislative style in the United Kingdom also tend to prefer specificity over generality and this makes it unlikely that governments would be persuaded to complicate the statute book with the addition of Charter-derived generalities, especially because it is maintained by those governments that domestic legislation is already Charter-compliant. The constitutionally innovative Human Rights Act 1998 would, in this   30. S. Tanasescu, ‘Local Government in Romania’, in lgmseu at pp. 536–7.   31. A.-M. Moreno, ‘Local Government in Spain’, in lgmseu at p. 606.   32. I. Van Haaren-Dresens, ‘Local Government in the Netherlands’, in lgmseu at p. 481.

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context, be regarded as a very special case and it may, in any event, be noted that that measure to give heightened domestic effect to the European Convention on Human Rights came nearly half a century after the conven­ tion’s ratification and in circumstances where the case for offering domestic remedies and for the avoidance of washing dirty linen in the public gaze of the Strasbourg Court was compelling. Plainly the domestic effect achieved for European Community and European Union law by the European Communities Act 1972 is in a class of its own and no parallel can be drawn there with the Charter. Thus, on the face of it, the Charter appears to enjoy a status achieving no domestic recognition by British courts. There are, however, three qualifying observations which may be made: 1. In the first place, the courts have developed ways in which, though a treaty may have no formal status as a source of domestic law, its terms may be given a degree of recognition. This was a feature most commonly identified in relation to the echr prior to the Human Rights Act 1998. Where the domestic law – whether in statute or the common law – was unclear, the courts took the view that the interpretation to be adopted should be one which was compatible with the echr, rather than one which was not.33 The same approach continues to be applied in relation to other treaties, a position reaffirmed in relation to the Aarhus Convention in a recent Scottish case,34 and there is no reason why a court might not be persuaded, in circumstances of ambivalence in domestic legal provision, that a Charter-compatible interpretation should be adopted. Relatedly, but rather more tenuously, the argument has sometimes been made that the existence of a treaty-based obligation on the government might create a ‘legitimate expectation’ of a treaty-compliant decision.35 Thus, a local authority aggrieved by a hostile government measure might conceivably be able to invoke the Charter as the source of a standard required to be observed. It has to be said, however, that the only case36 in which, it seems, the Charter’s terms have been directly invoked in proceedings in a British court   33. See, for example, R v. Secretary of State for Home Affairs, ex p Brind [1991] 1 AC 696; Derbyshire County Council v. Times Newspapers Ltd [1993] AC 534. See also, in Scotland, T, Petitioner 1997 SLT 724.   34. See, for example, Forbes v. Aberdeenshire Council [2010] CSOH 1. See also Walton v. Scottish Ministers [2013] SC (UKSC) 67 (Lord Carnwath at paragraph 100). Cf. R (Evans) v. Secretary of State for Communities and Local Government [2013] EWCA Civ 114.   35. But see, for example, the Scottish case of Temel v. Secretary of State for Home Affairs 2005 SLT 204.   36. R (Shrewsbury and Atcham Borough Council) v. Secretary of State for Communities and Local Government [2007] EWHC 229 Admin (Administrative Court) and [2008] 3 All ER 548 (Court of Appeal).

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offers little comfort for would-be local authority litigants. The case arose out of a challenge by a local authority to procedures being taken by the Secretary of State (in advance of the passing of the Local Government and Public Involvement in Health Act 2007) to require it (with others) to become part of a new unitary authority. The challenge failed in the English Administrative Court and then in the Court of Appeal. One of the (lesser) grounds on which the local authority relied was the contravention of Article 4(4) of the Charter, requiring that local authority powers ‘may not be undermined by another, central or regional, authority except as provided for by law’. It was argued that the preparatory steps taken by the minister towards reorganisation created a blight over the workings of the councils affected. Along with the local authority’s other arguments, however, the Charter argument was rejected at both levels.37 The courts were clear that the Charter was not a part of domestic law but might be used as an aid to statutory construction or perhaps as a guide to common law development.38 At first instance, however, Underhill, J. thought the question of whether the minister’s procedures under challenge ‘undermined’ the local authority was ‘too vague to be justiciable’. In the Court of Appeal, Carnwath, L. J. found it unclear which legal rule could be better interpreted by use of the Charter. ‘At most, perhaps’, he said, ‘the Charter emphasises the need for central government to tread warily in this area, with due respect for the democratic role of local government. But I would regard that as a principle already embedded in the common law.’39 2. The second consideration to be taken into account is that of devolution in the United Kingdom since 1999, especially in Scotland and Wales.40 Thus, legislative competence in respect of local government has very substantially passed, under the Scotland Act 1998, to the Scottish Parliament and, under the Government of Wales Act 2006, to the National Assembly of Wales, and any steps towards the incorporation of the Charter would be a matter for the devolved legislatures. There is a return to these and other consequences of devolution in Chapter 6. 3. Thirdly, returning to the United Kingdom level and, more specifically, to the position in England, it has been noted elsewhere that the role of the   37. [2007] EWHC 229 paragraph 26; [2008] 3 All ER 548.   38. The Court of Appeal cited Derbyshire County Council v. Times Newspapers Ltd [1993] AC 534 at 551.   39. Citing Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC 1014 at 1047–8.   40. As already noted (see 75 above) the terms of the United Kingdom’s declaration under Article 13 of the Charter preclude its extension to Northern Ireland.

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Charter is a topic that merges, as it does also in Scotland and Wales, into broader questions of central–local relations. On the whole, the preference has been, while acknowledging the status of the Charter’s terms in international law and the obligations it imposes on British governments, for a political rather than a juridical basis for the relationship. Of course, the need for the specific statutory rules which bind both central and local government is acknowledged but, beyond those rules, enforced, as necessary, in the courts, there is an acceptance that the broader basis of the relationship should, indeed, be political. The Charter thereby acquires a domestic political status in the United Kingdom which it lacks as a source of law. And that serves as a reminder of three related considerations applicable more widely to all Charter member states. The first is that the Charter operates across a continent that accommodates countries which have different formal rules about the adoption of international treaty law into their domestic systems; and that also have written constitutional regimes (including, in one case, the lack of a written constitution altogether) whose facility for absorbing new principles of local autonomy varies widely. This includes the ease (or not) with which the constitution may be formally amended. Secondly (and doubtless, to an extent, relatedly) European countries have legal cultures which vary as to the extent to which they willingly accommodate in the statute book general principles of law, as opposed to a reliance on specific rules. This becomes a question of legislative drafting practice. In the United Kingdom, it is not merely the absence of a written constitution that makes the incor­ poration of the Charter (or other treaty obligations) a difficult exercise but also an unwillingness to deploy open-ended language at any level in the system. But, thirdly, it has to be noted that, whatever the encouragement of, or antipathy towards, the granting of a legal status to the Charter in domestic legal systems, the Charter may also be deployed politically. The Charter’s provisions may be invoked as one point of reference in what is always a profoundly political relationship between central and local government. D CHARTER MONITORING41 1 Towards a Monitoring Procedure It is becoming a recurring theme of this book that one of the assumptions   41. For an early discussion of monitoring under the Charter, see A. Delcamp, ‘Monitoring the Implementation of the European Charter of Local SelfGovernment in the Member States that have ratified it: The Experience of Western European Countries’ in the Proceedings of the Conference on the

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underlying the European Charter of Local Self-Government, both at its inception and in its subsequent operation, is that it is not merely a declaration of principles to which state parties might aspire but also a statement of rules to which states have committed themselves as binding upon them. In turn, there is an assumption that there must be enforcement mechanisms to make that binding quality a reality. We have already noted that such enforcement may derive from the availability of judicial processes within the domestic legal systems of member states – though we have also observed that the scope for such domestic judicial enforcement will vary according to the status afforded to the Charter by the rules of each constitutional order.42 It is also the case that the Charter may achieve domestic effect of a political rather than a strictly legal character if invoked, for instance, by local authorities as a basis for negotiation with central government. As with many other treaty regimes, however, it must be primarily to the mechanisms available at the international level that one will look for the most authoritative and effective form of enforcement. But, as the Charter’s Explanatory Report concedes, the ‘Charter does not provide for an institu­ tionalised system of control of its application, beyond a requirement for parties to supply all relevant information concerning legislative or other measures taken for the purpose of complying with the Charter’.43 There is, therefore, nothing remotely equivalent to the European Court of Human Rights (or indeed the Court of Justice of the European Union) for the resolution of conflict. There is no provision at all in the Charter for either a special tribunal to resolve alleged breaches or for anybody to take up the case of those claiming infringement of their Charter rights. Nor is there a committee equivalent to the Compliance Committee (consisting of inter­ national law experts) established under the Aarhus Convention.44

Occasion of the 10th Anniversary of the European Charter of Local SelfGovernment (Council of Europe, 1997). The Proceedings were of a conference held in Copenhagen in 1996. See also Congress Recommendation 20 (1996) on Monitoring the Implementation of the European Charter of Local SelfGovernment.  42. See Section B above. In Congress Recommendation 2 (1994) it had been deliberately noted that, alongside the monitoring programme already being embarked upon, there were difficulties with any reliance on the systematic enforcement of the Charter in domestic courts. See 85 above.  43. In the ‘General Remarks’. The obligation to provide information is under Article 14 of the Charter.   44. The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (1998). For practice in another area, see F. Palermo, ‘Domestic Enforcement and Direct Effect of the Framework Convention for the

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Enforcement was not an aspect of the future operation of the Charter that engaged its drafters to any great extent. In due course, however, with the Charter’s text agreed and promulgated, the then Standing Conference of Local and Regional Authorities had to return to the question of how monitoring was to be done and, although the original scheme to be formally proposed was not implemented, it is valuable to take account of its principal elements. In Resolution 223 (1991) on the role of local and regional authorities in integration policy between Western and Eastern Europe, the conference also recorded its views on other matters, including monitoring. On the one hand, it instructed its bureau: ‘to act in co-ordination with national and European associations of local and regional authorities to ensure effective and continuous monitoring of the implementation, in both legislative and judicial terms, of the European Charter of Local Self-Government in the countries where it is in force and to organize a colloquy shortly for that purpose’. But then, more pertinently, it requested the Conference of European Ministers responsible for Local Government, at its next meeting in May 1991 ‘to devise a genuine system to monitor the application of the [Charter], in consultation with the clrae’: Such a system, by means of a protocol to the Charter, could involve the creation of a committee of independent experts with the following membership and tasks: a Membership: members could be elected by the Committee of Ministers on the basis of nominations made by the Parliamentary Assembly, after consulting the clrae. They should not be re-eligible; b Tasks: – preparing periodic reports on the state of implementation of the Charter, including recommendations to the Committee of Ministers on the basis of information provided by the parties to the convention and by the associations of local and regional authorities concerned; – dealing with the complaints presented by national associations of local and regional authorities or by national delegations to the clrae as regards the implementation of the Charter.

In the event, however, the next formal stage in the process was the promulgation by the Standing Conference of Resolution 233 (1992) on the implementation of the Charter. Some of that resolution related to the steps proposed in the Final Declaration of the (Barcelona) Conference on the

Protection of National Minorities’, in A. Verstichel et al. (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument? (Intersentia, 2008).

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Charter for the implementation of the Charter by the courts of the member states.45 In addition, however, the Final Declaration had expressed the view that a system of monitoring of the Charter was desirable and that: 14. [I]n the absence of an international court, [it] could consist in the establishment of a Committee to which the Contracting Parties would submit periodical reports on the application of the Charter; such a mechanism would indeed make it possible not only to see how the Charter is applied in each state, but also to highlight any cases where national legislation may not be in conformity with the Charter; however, the opinion was expressed that, in view of the nature of the undertakings contained in the Charter, the great diversity of the forms of local democracy which exist in the various countries, the complexity involved and the time required for drawing up the reports, prudence is called for in accepting such a solution; 15 . . . as an alternative to the system mentioned above and in accordance with the ideas contained in the Explanatory Report on the [Charter], that the clrae, within the framework of its political responsibilities, could set up a special system to ensure that the undertakings entered into under the Charter are respected.46 In this regard, the opinion was expressed that the clrae could, each year, select a number of articles of the Charter and, by various means including recourse to consultants, obtain information on the applica­ tion of these articles in the individual states; on the basis of an evaluation of the reports received, the clrae could then make proposals to governments with a view to promoting local autonomy;

In due course, the system of Charter monitoring by means of the selection of Charter articles and investigation of their application in ratifying states was adopted.47 The first question proposed for investigation was the place of the Charter in the internal law of states and the possibility for interested parties to refer to a domestic court cases of non-conformity of national legislation   45. See 86 above.   46. What the Explanatory Report actually says, within the introductory ‘General Remarks’, is: ‘The Charter does not provide for an institutionalised system of control of its application, beyond a requirement for parties to supply all relevant information concerning legislative or other measures taken for the purpose of complying with the Charter. Consideration was indeed given to setting up an international sytem of supervision analogous to that of the European Social Charter. However, it was felt possible to dispense with complex supervisory machinery given that the presence within the Council of Europe of the clrae with direct access to the Committee of Ministers would ensure adequate political control of compliance by the parties with the requirements of the Charter.’   47. Congress Recommendation 2 (1994), paragraph 3.

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with the Charter.48 The idea that the Charter should be monitored by means of country-by-country scrutiny had not yet emerged. 2 The Institutions and Procedures of Monitoring Since those early years of uncertainty and tentative development, the Congress has moved forward to a position in which it can currently restate its commitment to the centrality of Charter monitoring in these terms: The core mission of the Congress of Local and Regional Authorities is the effective monitoring of the situation of local and regional democracy in member states by assessing the application of the European Charter of Local Self-Government, adopted in 1985. The Congress is the only European institution with the legal mandate to monitor the implementation of the Charter, and observe the local and regional elections which is complementary to the political monitoring process. Through this process of monitoring, the Congress contributes, at territorial level, to the main objectives of the Council of Europe, which are to advance democracy and human rights on our continent. Monitoring is also part of an ongoing political dialogue with the different levels of governance in the State concerned.49

Something was said in Chapter 1 about the principal institutions of the Council of Europe. Under the Council’s statute of 1949 it is the Committee of Ministers which has the general duty to ‘consider the action required to further the aim of the Council of Europe, including the conclusion of conventions or agreements and the adoption by governments of a common policy with regard to particular matters’.50 And then: ‘In appropriate cases, the conclusions of the Committee may take the form of recommendations to the governments of members, and the Committee may request the govern­ ments of members to inform it of the action taken by them with regard to such recommendations.’51 In the absence of any more specific treaty provisions, it is on the basis of these articles of the statute that the Committee of Ministers maintains its general supervisory role over the treaty obligations of members. We also know, however, that, first by a statutory resolution of 199452   48. Ibid. paragraph 4. See 86 above.   49. The Congress website at: http://www.coe.int/t/congress/Activities/Monitoring/ default_en.asp?mytabsmenu=3   50. Article 15(a).   51. Article 15(b).   52. Resolution 94(3). The resolution replaced the earlier Standing Conference of Local and Regional Authorities with the Congress.

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and latterly by a further statutory resolution of 201153 the Committee of Ministers has established the Congress as a consultative body with a remit including: Article 2 ... 1. The Congress shall prepare on a regular basis country-by-country reports on the situation of local and regional democracy in all member states and in states which have applied to join the Council of Europe, and shall ensure, in particular, that the principles of the European Charter of Local SelfGovernment are implemented. ... 5. Recommendations and opinions of the Congress shall be sent as appro­ priate to the Parliamentary Assembly and/or the Committee of Ministers as well as to European and international organisations and institutions. Resolutions and other adopted texts which do not entail possible action by the Assembly and/or the Committee of Ministers shall be transmitted to them for their information.

Thus, in respect of the Charter, it is to the Congress that the Committee of Ministers has, in effect, delegated its supervisory functions, albeit within the broader context of the monitoring of local and regional democracy.54 To achieve this, the Congress has adopted rules55 according to which monitoring is to be conducted. Currently these take the form of Congress Resolution 31 (1996) on ‘Guiding principles for the action of the Congress when preparing reports on local and regional democracy in member states and applicant states’;56 and Congress Resolution 307 (2010) (REV2), as approved by the Congress in October 2013, on ‘Procedures for monitoring the   53. CM/Resolution (2011) 2. Replacing earlier statutory resolutions (2000) 1 and CM/Resolution (2007) 6. In October 2014, the Congress recommended [Recommendation 367 (2014)] of the Charter but without impact on the provisions discussed.   54. For the relevance, too, of the Reference Framework for Regional Democracy, see 175 below.   55. Required under statutory resolution CM/Resolution (2011) 2 Article 1.   56. Which itself invoked the support of Recommendation 20 (1996) and Resolution 34 (1996) on ‘Monitoring the implementation of the European Charter of Local Self-Government’. Resolution 34 (1996) specifically recalled (paragraph 8) that it was with the Committee of Ministers’ agreement and in the absence of an intergovernmental system for monitoring the implementation of the Charter for the Congress to supervise its application and respect for its principles. See also Congress Recommendation 2 (1994).

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obligations and commitments entered into by the Council of Europe member states in respect of their ratification of the European Charter of Local SelfGovernment’, appended to which are rules governing the organisation of monitoring procedures, and also a ‘Code of Good Conduct for Monitoring Delegations’. Central to the Congress’s work in this area is its monitoring committee or, to give it its full title, the Committee on the Honouring of Obligations and Commitments by Member States of the European Charter of Local SelfGovernment.57 The committee’s responsibilities58 include ‘ensuring that member states develop and maintain local and regional democracy, in full compliance with their obligations under the Charter . . . and its Additional Protocol’ on public participation. The committee is ‘responsible, in particular, for monitoring the European Charter of Local Self-Government (eclsg) as well as institu­ tional developments in Europe’s regions, for preparing reports on the situation of local and regional democracy in Europe and for monitoring specific questions related to local and regional democracy in the member states’.59 A series of further terms of reference have been added by the Congress bureau.60 These include, for instance, the obligation to take into consideration the situation of human rights at local and regional levels in Europe. This obliga­ tion reflects a political initiative launched by the Congress in 201061 which asserted a distinctive role for local and regional authorities in human rights protection and accordingly a need to extend scrutiny (but not, it is emphasised, formal monitoring) into this area.62 This approach was   57. Congress New Rules of Procedure [adopted by Congress Resolution 337 (2012)] Rule 44.   58. Defined by the Congress bureau in 2010, CG/BUR (19) 8.   59. Rules of Procedure, Rule 36. See also Resolution 309 (2010) on the reform of the Congress.   60. CG/BUR(19)8.   61. Congress Recommendation 280 (2010) on ‘The Role of Local and Regional Authorities in the Implementation of Human Rights’. See also Resolution 334 (2011) ‘Developing Indicators to Raise Awareness of Human Rights at Local and Regional Level’; and, for an articulation of the human rights dimension of Congress work, see presentation by the Congress Secretary General, Andreas Kiefer, in 2013 at: https://wcd.coe.int/ViewDoc.  62. Despite this new Congress commitment to the implementation of human rights, there is some uncertainty about the status of monitoring in this area. In a document Outlook to the Future (presented as the ‘Chaves Report’ by Manuel Chaves to the Conference of Ministers in Kyiv in November 2011) it is stated that the ‘Committee of Ministers notes that the Congress does not intend to monitor, or on its monitoring visits to assess, the implementation of human rights by local and regional authorities and that it will not duplicate the activities

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reaffirmed by the Congress in March 2014.63 Other elements of the monitoring agenda include a commitment to seeking a review by monitored states of (1) the extent of their declarations under the Charter and especially any reservations entered at the time of ratification or subsequently;64 and (2) the extent to which Charter application and enforcement can be ensured within the domestic legal system.65 This is to include enquiries of senior judicial authorities on these questions. There is also a specific (and recently reinforced) commitment to ensure that recommendations to member states are followed up, related to which is a duty on the monitoring committee to devise a strategy to strengthen the capacity of domestic monitoring bodies and to initiate a post-monitoring dialogue and targeted programmes of assistance ‘to provide concrete assistance to local and regional authorities and an efficient follow-up to its recommen­ dations’.66 The committee is also expected to contribute to clarifying ‘the interpretation of the Council of Europe’s legal instruments, and other texts in the field of local and regional democracy, notably the European Charter of Local Self-Government, and the relevant recommendations and resolutions adopted by the Congress, as well as the Reference Framework for Regional Democracy’.67 As is made clear in these accumulated terms of reference, the principal form that the monitoring of the Charter takes is the ‘country-by-country reports on the situation of local and regional democracy in all member states’ and the way in which this is done will be further explained. It should also be borne in mind, however, that, as broadly understood, Congress monitoring takes two other forms as well.68 The first retains a focus on individual countries that may be undertaken, not on the basis of a programme initiated by the Congress but, instead, on the initiative of ‘local and regional authorities acting through their representative associations for their clrae delega­ tions’.69 This is a mechanism that, in effect, enables complaints about alleged breaches of the Charter to be lodged with the Congress for investigation and of Council of Europe monitoring bodies’.   63. Congress Resolution 365 (2014). The resolution referred to co-operation on this project with other Council of Europe bodies and with the European Union Agency for Fundamental Rights.   64. See 69 above.   65. See 85 above.   66. CG/BUR(19)8, paragraph 13.   67. Ibid. paragraph 14.   68. Quite separately, CM/Resolution (2011) 2 also provides for the Congress to monitor local and regional elections (Article 4). See Resolution 306 (2010) for the Congress strategy and rules.   69. Resolution 341 (1996), Articles 4 and 8.

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report. This is not a procedure that has been widely used though there has, for instance, been action in response to the improper dismissal and suspension of mayors in Romania,70 and on the compliance of Norwegian legislation with Article 11 of the Charter.71 It may be surprising that the procedure has not been more widely deployed72 but it should be recognised that it will often be the case that neither local authority associations nor Congress delegations will be favourably disposed to register internationally publicised complaints against their own states.73 Also referred to is the responsibility of the monitoring committee for the production of ‘fact sheets’ in supplementation of the primary monitoring activities. These have been organised when the situation in a particular country gives rise to concern or needs to be clarified in the light of one or more of the Charter’s provisions. The Congress website74 notes several recent instances: a visit to Turkey in 2007 to examine complaints about the suspension and dismissal of four mayors;75 to Latvia in 2008 to investigate progress towards the implementation of an earlier Congress report on the participation of non-citizens in public and political life at local level;76 and to Belgium (also in 2008) to clarify the situation following the failure of the Flemish minister to appoint (French-speaking) mayors in three municipalities with special linguistic arrangements in the Flemish region.77 The other approach to monitoring the application of the Charter which has been adopted by the Congress has been to undertake studies based not on individual states but on individual articles or themes within the Charter. The Congress gathers information from all the state parties to offer a comparative analysis of the effect given to the chosen article or theme and to   70. Producing Recommendation 12 (1995).   71. Recommendation 203 (2006).   72. Though the Congress has recently referred to the receipt of complaints from Austria, Bosnia and Herzegovina, Belgium, Ireland and Portugal. See p. 20 of https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.   73. For a proposal actively to promote a complaint procedure with the result that the Congress acquires an enhanced status as a ‘court’ for the Charter, see F. Merloni, ‘Prospects for strengthening the role of the European Charter of Local Self-Government’, in The European Charter of Local Self-Government (Council of Europe, 2006).  74. http://www.coe.int/t/congress/Activities/FactFindingMissions/default_en.asp? mytabsmenu=3   75. Leading to Congress Recommendation 229 (2007).   76. Recommendation 257 (2008).   77. Recommendation 258 (2008). There was also a fact-finding visit to Georgia in February 2013. See http://www.coe.int/t/congress/newssearch/Default_en.asp? p=nwz&id=7145&lmLangue=1

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record the response of states to it. Such analysis has been offered on a diverse range of topics. Many of these were called in aid by the Congress when they assessed the need for Charter amendment and prepared the (eventually abortive) draft additional protocol in 2007.78 More recently, there has, for instance, been the report and resolution on the Charter’s status in the domestic legal systems of member states.79 The way in which such thematic reports reach the Congress in draft is by the deployment of one or two members of the Congress to take formal responsibility, as rapporteurs, for their preparation. But the actual process of assembling and analysing the data and then the drafting of the report requires mention of another Congress institution – the Group of Independent Experts.80 This is a group of individuals drawn (one substantive member but also with at least one alternate member) from states that are parties to the Charter who are normally (but not necessarily) academics and normally (but, again, not in all cases) with skills in the legal field. Members are appointed by the Congress Secretary General (for four-year renewable terms) and are required to act wholly independently of the governments of their ‘home’ states. They provide a resource of expertise on which the Congress can draw in all its monitoring activities. In respect of the thematic analysis of the implementation of Charter provisions, it is the role of members of the group to provide the information on the basis of which a nominated member prepares a draft report for consideration by the group as a whole and for onward transmission to the rapporteurs and the Congress. Returning to country-by-country monitoring of local and regional democracy, this is the activity that has been at the heart of Congress business – its core mission – for many years. Since the Council of Europe reform process from 2010,81 there has been an enhanced commitment by the Congress to Charter monitoring, as reflected in the new procedures and rules already referred to and whose principal aim is to make the monitoring of member countries more regular (every five years) and more systematic. The essential elements of the monitoring procedure82 are: (1) the identification of the country for monitoring; (2) the selection and appointment   78. See 79 above.   79. See Resolution 331 (2011) and 88 above. See also Resolution 223 (2006) on New Forms of Control over Local Authorities.   80. For the group’s current statute see: https://wcd.coe.int/ViewDoc.jsp?id=1980999&Site=Congress&BackColor Internet=C3C3C3&BackColorIntranet=CACC9A&BackColorLogged= EFEA9C   81. See Chapter 7.   82. As currently laid down in Congress Resolution 307 (2010) REV2.

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from the membership of the Congress of the rapporteurs; (3) the nomination also of a member (occasionally two members) of the Group of Independent Experts83 and a member or members of the Congress secretariat in support of the rapporteurs; (4) the arranging and undertaking of a visit or visits to the country to gather information and opinion; (5) the preparation of a draft report and draft recommendation (and sometimes a draft resolution) for discussion and approval by the monitoring committee of the Congress and then adoption and publication by the Congress itself prior to submission to the Committee of Ministers; and (6) any follow-up measures subsequently undertaken by the Congress. Taking these elements in turn: 1. Country selection This is a matter for the bureau of the Congress which then instructs the monitoring committee to make the necessary arrangements. The Congress fact sheet, already referred to, records that (to 2010) the Congress had ‘almost completed’ the first monitoring cycle of the (then) forty-four ratifying states. In the period since country-by-country monitoring began in 199784 some countries had never been monitored, including Belgium,85 France, Austria,86 Switzerland87 and Iceland.88 This reflected, in part, the late accession of Belgium and France but also the tendency of the Congress to focus on the processing (initially preaccession) of all the states which joined the Council of Europe in the period since 1990. Certain countries (for example, Turkey and Cyprus) had been monitored more than once. With only Andorra, Monaco and San Marino still in the Congress wings as wholly new business for monitoring, the Congress intends that the focus should move towards a larger number of monitoring exercises per year, with each country monitored every five years. The Congress website records that there were five recommendations on monitored countries in 2009, five in 2010, but nine in

  83. Paragraph 16 of the procedures also permits instead the use of ‘an independent consultant who has specialist knowledge of the country to be visited and substantial knowledge of the Charter and of local and regional democracy issues in Council of Europe member states’.   84. There had been a one-off monitoring of Romania in 1995. See Recommendation 12 (1995). The first substantive recorded report and recommendation were in respect of Turkey. See Recommendation 29 (1997).   85. There was a preratification report and recommendation in 2003. See Recommen­ dation 131 (2003). And there was finally a substantive recommendation on Belgium in 2014.   86. See now Recommendation 302 (2011).   87. See now Recommendation 285 (2010).   88. See now Recommendation 283 (2010).

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2011, and then eight in 2012 and a further eight in 2013. In 2014, the total number of monitored countries had, however, fallen again to five. It may be that the Congress will have to revisit the commitment to monitoring all fortyseven member states on a five-yearly cycle and, at that point, a principal question may be whether uniformity of treatment is helpful. The approach of the European Court of Human Rights is, of course, wholly different – it depends on the receipt of business from litigants – but there is nothing about its work that assumes that all Council of Europe countries will provide an equal amount of business. 2. The appointment of rapporteurs In most cases, monitoring is in respect of both local and regional democracy and, therefore, the monitoring committee appoints (normally from its own membership) both a local and a regional member to be rapporteurs. In the case of only local monitoring (in respect of countries asserting no regional level of government),89 there is a single local rapporteur. Under the new rules adopted in 2010, rapporteurs must not be nationals of the country to be monitored, nor of a bordering country or a country that has a particular relationship with the country. This is a rule that seems, unremarkably, to derive from a wish to avoid conflicts of interest in the monitoring process, and the exclusion of nations of the monitored country is an obvious first step. Beyond that, however, the wish, through the ban on nationals of a bordering country, to exclude some other who may also have prior views, positive or negative, about conditions in the country becomes much more problematic. Presumably the rule derives, in the main, from the effects of certain known border conflicts and enmities where a neighbouring rapporteur would be at least a distraction. But not all prejudices, negative or positive, originate in propinquity. Hence the ban also on rapporteurs from a country with a ‘particular relationship’. But what does that mean? Which ‘particular relation­ships’ disqualify? Might, for instance, a former colonial relationship disqualify?90 Or other historical connections? But it may be noted that Spain was recently monitored by rapporteurs from Belgium and the Netherlands.91 Or Cold War-generation relationships? And which contemporary relationships? Might a German rapporteur, for instance, be excluded, given the current  89. Recent examples include Former Yugoslavian Republic of Macedonia (Macedonia) and Ireland. As earlier noted, the absence of regional government in a country does not preclude its representation in the Chamber of Regions of the Congress. See 11 above.   90. Meaning that the Maltese rapporteur on the United Kingdom in 1998 would, today, be no longer able to take part.   91. Recommendation 336 (2013).

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financial and political relationship between the two countries, from moni­ toring Greece? The maximum duration of a rapporteur’s mandate for a particular country is normally to be five years – a rule that represents a potentially significant change from previous practice when some rapporteurs retained their mandate over a longer period. Presumably, the decision has been made that any advantages which might have derived from a growing expertise over time was overridden by the risks of a rapporteur’s loss of critical distance through overfamiliarity? Another issue related to rapporteur expertise is that of rapporteur training. Partly because of comings and goings on the Congress resulting from local electoral choices, many Congress members lack any monitoring experience. This has led to a recent attempt to focus on member training. At least one meeting of the monitoring committee has been devoted to training.92 3. The nomination of the rest of the monitoring team Though monitoring exercises are conducted under the political leadership of the rapporteurs, and reports are written in their name, they are assisted at all stages of the process by a nominated member of the Group of Independent Experts and by one or two members of the Congress secretariat. It is a shared responsibility of the expert and the member or members of the secretariat to gather together existing information on local and regional democracy in the country. 4. The country visit An important aspect of the preparation for a monitoring exercise is the documentary briefing of members of the team. Such documentation will routinely include constitutional and legislative provision relevant to local and regional democracy in the country and other relevant materials such as facts and figures on local and regional authorities, any current reform proposals, and other published materials from within the country or from the Council of Europe, European Union or other international organisations. A prime source of material for the rapporteurs, however, is what they themselves can learn on the country visits. In the past, two visits were normally scheduled but now the normal practice is stated to be a single visit. Visits are short – a maximum of two or three days – but are the opportunity for discussion (on the basis of written questions prepared and submitted in advance) between the monitoring team and government ministers and officials, Members of Parliament, mayors and councillors (including members   92. See State of the Congress, 2012, p. 10. http://www.coe.int/t/congress/Publications/ state-congress/2012_en.pdf

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and officials of local authority associations and Congress delegates), the President of the Constitutional Court, ombudsmen, representatives of nongovernmental organisations and ‘civil society’, academics and other specialists. There is often the opportunity to talk to mayors and other elected officials in their own towns and villages. Ideally the visit provides the chance to test conflicting views on ‘the state of local and regional democracy’ and, in particular, to extend the knowledge and understanding of the rapporteurs, beyond the formal account provided by the constitution and the laws, into actual practice on the ground. In 2013, a ‘Code of Good Conduct for monitoring delegations’ was appended to the published general procedures.93 The code contains specific rules on the avoidance of conflicts of interest (regulating gifts received from the monitored state) and otherwise seeks to reinforce the obligations of the participants on monitoring missions, in the interests of efficiency but also the maintenance of good relations with the national authorities. The code also lays stress (paragraph 50) on the task of the rapporteurs as that of establishing political dialogue with those authorities: ‘the rapporteurs’ role is not one of inspection’. This is probably the clearest explicit statement of the Congress’s emerging commitment to political dialogue, rather than confining itself, as might have been expected in the monitoring of Charter compliance, to the scrutiny of areas of compliance and non-compliance with a state’s treaty obligations, which must necessarily be a process of inspection?94 Some of the more general difficulties involved in the interpretation and application of the Charter will be considered below but reference should be included here to the evident limitations of time and resources imposed on Congress monitoring. Monitoring exercises cannot be compared with the sort of research that might be undertaken by a fully funded programme undertaken in a university department or by a committee of inquiry dedicated to the issues over many months or years. In order best to exploit the opportunities available to the Congress, one essential element in the exercise is the contribution to it of country-based critical input. This may be expected to come from academics and other independent experts but the most important source should normally be the evidence submitted by the local authority associations. In functioning systems of local democracy, this can be expected. The associations will be well informed and wholly familiar with the role of challenging the views presented by the statute book, other formal sources and central government policies. Such views cannot themselves to be given an uncritical reception but they are very useful in providing the fuller   93. See 100 above.   94. For further discussion of the consequences of pursuing dialogue rather than inspection, see Chapter 5.

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picture which is essential to a visiting team on a short visit. The one phenomenon which can destroy this opportunity is the sort of circumstances in which politicians participating in what is close to being a one-party state may present a united front, regardless of their prior central, regional or local attachment. Critical examination of the issues is at risk of being obscured by such a single official account. 5. The report and recommendation Shortly after the country visit, a report is prepared for adoption, in the first instance, by the rapporteurs. In addition to supplying the formal background to the monitoring exercise and information about the country visit, the report normally provides a brief account of the recent political history of the country, its institutions and its laws followed by the rapporteurs’ analysis (usually, article by article) of the degree of compatibility between the country’s law and practice and the terms of the Charter. In the past, the standards according to which regional democracy were assessed were derived by analogy from the Charter standards. But now, the Reference Framework for Regional Democracy, approved by the Council of Ministers in Utrecht in 2009,95 provides guidance at the regional level. As earlier mentioned, another component of most reports is discussion of one or more human right issues relevant to local and regional authorities. On the basis of the draft report, a draft recommendation is prepared in terms which, after conventional recitals and commentary on general political developments in the country, enable the principal conclusions of the report to be recorded and recommendations (in the name of the Congress) made for the reform of the law and/or practice in the country. Where appropriate, there may be an offer of Council of Europe assistance (for example, in the form of expertise in legislative drafting) with the implementation of any suggested reforms. The recommendations are addressed principally to the central government concerned but sometimes also to the representatives of local and regional government. Draft reports and recommendations are considered and adopted (subject to such amendments as may be agreed) by the monitoring committee for discussion and adoption prior to their onward transmission to the next full session of the Congress (in the case of local-only reports, before the Congress’s local chamber) for formal adoption and publication. Recommen­ dations are forwarded to the Committee of Ministers, in the language of the rules, ‘for debate and subsequent transmission to the authorities of the country concerned.’96 In fact, however, the practice of the Committee of Ministers seems to be that the content of the Congress recommendations is   95. See 176 below.   96. Rule 1 c. The recommendation is also sent to the Parliamentary Assembly.

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sent on to state governments without debate. The Congress issues an invitation to those authorities to address a plenary session of the Congress (or a session of one of the Congress chambers), whether at the time of adoption of the recommendation or subsequently.97 6. Follow-up It has already been noted that the Congress has recently committed itself to following up monitoring with an engagement with the country’s authorities to ensure a positive response. It remains to be seen what form such follow-up takes. In the Chaves Report of November 2011,98 the discussion of the recommendation in the Committee of Ministers and its subsidiary bodies and the concrete follow up including the implementation of the recommendations in action plans together with the authorities of the member state concerned. It is the latter and most crucial stage that the political dialogue with the member states represented in the Committee of Ministers and in the Ministerial Conference takes place. The support of member states of the implementation of the recommendations is the precondition and the guarantee for the organisation’s efficiency in this core field of activities.99

In a recent statement, the then president of the Congress said: Monitoring has allowed us to enter into more substantial and more targeted dialogue with authorities in the country concerned, and we can see the first results of these efforts. Our monitoring report on Austria has triggered debate about federalism in that country, and in June, the Austrian parliament voted decisions that were a direct implementation of three concrete Congress recommendations. Also as a result of monitoring, the Estonian government has renewed its dialogue with local authorities, and Slovenia has ratified the Additional Protocol to the Self-Government Charter, on citizen participation.100

In 2013, the Congress signalled a reinforcement of its follow-up programme, nicely captured in a speech by its then president, Herwig van Staa. He spoke of both a challenging and promising time for the Congress in an age of multiple crises. There was an historic opportunity for ‘concrete action, action that produces tangible results reaching all levels of governance, reaching our citizens at the grassroots’. ‘We cannot’, he said, ‘respond to today’s challenges   97. Rule 1 d.   98. See 100 above.   99. At p. 7. 100. Communication of October 2011: http://www.coe.int/t/congress/newssearch/ Default_en.asp?p=nwz&id=6824&lmLangue=1

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with theory alone. We need to develop a practical vision of the situation and of the way to improve it.’101 The formal outcome was Resolution 353, passed by the Congress in March 2013. The Congress declared its commitment, in relation both to Charter monitoring and to its observation of elections, to developing political dialogue with the states concerned. The purpose of the dialogue is stated to be the discussion of a ‘roadmap’ to improve local and regional democracy in line with the recommendations addressed to the national authorities by the Committee of Ministers. This is to include discussion of co-operation activities by other Council of Europe departments – mainly externally financed. The Congress would normally be represented in this process by the monitoring rapporteurs and the chair of the monitoring committee. The overall process has been described as having a three-stage approach: monitoring the situation of local and regional democracy; post-monitoring dialogue; and targeted co-operation activities.102 It will be interesting to see how this ‘follow-up’ initiative works out in practice but three preliminary comments may be offered: 1.The new procedures are based entirely on a dialogue founded on consent. No follow-up discussion can proceed without the agreement of the government of the state concerned. Which states will offer that agreement is a matter of speculation. It will not be surprising if states which are still in the situation of seeking approval of their arrangements in anticipation of European Union admission are keen to attract post-monitoring dialogue and assistance. The Congress has reported103 that such procedures are being pursued with Albania,104 Armenia,105 Azerbaijan, Bosnia and Herzegovina,106 Georgia, Moldova, Russia, and Ukraine.107 On the other hand, it was also announced in autumn 2013 that there had been a post-monitoring visit to Portugal.108 What exactly may have motivated the Portuguese government to co-operate in this way is not clear. Perhaps the country’s financial vulnerability created the conditions of compliance? Whether other European Union member states will be ever tempted to join Portugal must remain doubtful. 101. 19 March 2013. https://wcd.coe.int/ViewDoc.jsp?id=2046995&Site=COE 102. Communication by A. Kiefer, 11 December 2013, https://wcd.coe.int/ViewDoc. 103. See Congress activity report, December 2013 at https://wcd.coe.int/com.instranet. InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2404783 &SecMode=1&DocId=2086738&Usage=2 104. With the assistance of Swiss funding. 105. With the assistance of the Danish government. 106. See Resolution 369 (2014), Recommendation 356 (2014). 107. Again with Danish help. 108. See http://www.coe.int/t/congress/newssearch/Default_en.asp?p=nwz&id=72 27&lmLangue=1 In March 2014 there was a second follow-up visit to Portugal.

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2. The reference in the resolution to a dependence on external funding is significant. The initiative is one to be undertaken at a time of great financial difficulty for the Congress and for the Council of Europe in general. In a communication to the Committee of Ministers in April 2013,109 the Congress secretary general included a section on the Congress’s budgetary requirements. He referred to an awareness on the part of the Congress that, after successive cuts in the previous four years, its budget would ‘barely suffice to maintain its statutory functions in place’. ‘In order’, he said, ‘to implement our new postmonitoring and co-operation activities – essential as they are – we will need to rely more heavily on voluntary contributions and on staff seconded from national public services.’ Thanking Austria and Italy, which had already taken steps in this direction, and Switzerland, which had made a specific contri­bu­ tion to a local democracy project in Albania, he appealed to other governments to help with staff secondments. It would be a ‘win-win’ situation for both parties, with national officials enjoying a learning experience while on secondment. It seems that a successful outcome for the follow-up scheme will be heavily dependent upon a solution to the Congress’s problem of staff and financial resources. 3. A final issue is that of the general advisability of the Congress going down the track of post-monitoring follow-up. Such a practice, however attractive from some other points of view, is bound to raise questions about whether the combination in a single institution of the regulatory and judgemental function of monitoring with the function of offering assistance to the regulated state in the periods between monitoring visits can be successfully achieved. A further comment on this and its overall impact on the monitoring process is added in Chapter 5 below.

E MONITORING: SOME RECENT CONGRESS RECOMMENDATIONS In a study such as this, it would be impossible to provide an analysis of all the monitoring exercises undertaken in relation to individual states by the Congress since 1995. An impression of their overall effect is offered in Chapter 6.110 For present purposes, however, two comments may give a flavour of the nature of reports (and especially recommendations) overall – first a summary of the principal recommendations made in the years 2011–14; and, secondly, a brief note on the United Kingdom Recommendations of 1998 and 2014.

109. See https://wcd.coe.int/ViewDoc.jsp?id=2052357&Site=COE 110. See p. 144.

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1. To get a broad sense of the scale of Congress monitoring in recent years, during 2011 the Congress approved (at its sessions in March and November) nine recommendations – in relation to Romania,111 Turkey,112 Austria,113 Malta,114 Slovenia,115 Bulgaria,116 Finland,117 Serbia,118 and Latvia;119 in 2012 eight Recommendations – for Czech Republic,120 Germany,121 Lithuania,122 Moldova,123 Portugal,124 Bosnia and Herzogovina,125 Azerbaijan,126 and Former Yugoslav Democratic Republic of Macedonia(Macedonia);127 in 2013, eight recommendations – for Georgia,128 Spain,129 Italy,130 Hungary,131 Ireland,132 Ukraine,133 Albania,134 Denmark;135 and, in 2014, five more recommendations – for Armenia,136 the Netherlands,137 Sweden,138 the United Kingdom,139 and Belgium.140 Such recommendations conclude, after the recital of the documents authorising monitoring and of some of the background to the particular exercise, including a note of previous monitoring in the country and a brief 111. Recommendation 300 (2011). 112. Recommendation 301 (2011). 113. Recommendation 302 (2011). 114. Recommendation 305 (2011). 115. Recommendation 308 (2011). 116. Recommendation 310 (2011). 117. Recommendation 311 (2011). 118. Recommendation 316 (2011). 119. Recommendation 317 (2011). 120. Recommendation 319 (2012). 121. Recommendation 320 (2012). 122. Recommendation 321 (2012). 123. Recommendation 322 (2012). 124. Recommendation 323 (2012). 125. Recommendation 324 (2012). 126. Recommendation 326 (2012). 127. Recommendation 329 (2102). A recommendation confined to local (rather than local and regional) democracy. 128. Recommendation 334 (2013). 129. Recommendation 336 (2013). 130. Recommendation 337 (2013). 131. Recommendation 341 (2013). 132. Recommendation 342 (2013). Local democracy only. 133. Recommendation 348 (2013). 134. Recommendation 349 (2013). 135. Recommendation 350 (2013). 136. Recommendation 351 (2014). Local democracy only. 137. Recommendation 352 (2014). 138. Recommendation 357 (2014). 139. Recommendation 353 (2014). 140. Recommendation 366 (2014).

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statement of current circumstances, with a series of specific critical obser­ vations. These are in the form of a recommendation to the Committee of Ministers to invite the national authorities to undertake a series of reforming measures.141 Typically, the number of such measures will range from five or six to nine or ten. There are certain standard entries in the list.142 Towards the formal end of the spectrum, countries will be encouraged to sign and ratify the Additional Protocol on Participation, if they have not already done so, and to agree to be bound by any Charter articles currently excluded by their declaration to the Council of Europe on ratification – again, if any. As to substance,143 almost all recent recommendations144 invited greater financial resources (or greater financial autonomy) for local authorities and a streng­ thening of equalisation arrangements. Some sought greater competences for authorities (especially Bulgaria, Austria, Hungary, and Malta), and there have been frequent calls for greater clarity in the definition of competences attributed to local authorities – especially where (for example, in the case of fyrom, Albania, Denmark and Ukraine) the lack of clarity produces apparent overlaps between local and central competences or (for example, in Belgium) overlaps between the municipal and provincial levels. Many others were critical of arrangements for the consultation of, and co-operation between, authorities. Other comments ranged across supervision arrangements, the status of staff, and the status of capital cities. The recommendations on Italy and Spain included specific treatment of the effects on Charter compliance of the global financial crisis. Overall, Finland – as a country with a longestablished system of local government on a western model – was probably the least criticised, though there was a comment on the effects of organisational reform resulting in the transfer of powers to central government, and it should be noted that Austria, amid a long list of adverse comments, attracted quite trenchant criticism of its federal structure and 141. Often listed as ‘suggestions’ in the recommendation. 142. In October 2014, the Congress discussed a document containing ‘recurring problems’ encountered during monitoring, including ‘a lack of local compe­ tences or of clarity in attributing responsibilities, insufficiency of financial resources and disproportional allocation of financial burdens to local govern­ ments, a lack of systematic and meaningful consultations with local authorities, excessive supervision by higher levels, ineffective coordination mechanisms in central/local government relations and a lack of citizen participation in local public affairs’. See ‘Congress Presidency 2012–14: Activities and Achievements’, p. 16. 143. For further analysis of some categories of criticism, especially where they show a measure of ‘overreach’ (that is, going beyond criteria directly derived from Charter provisions), see 135 below. 144. The exception, perhaps oddly, was Serbia which attracted a financial suggestion only in relation to the specific case of Vojvodina.

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organisation. Germany,145 though attracting comment on the financial consequences for local authorities because of the increasing burdens of social welfare payments, avoided serious criticism. The most seriously criticised overall were Albania, Armenia, Azerbaijan, Bosnia and Herzogovina, Bulgaria, Georgia, Hungary, Moldova, Romania, Turkey (including severe criticism of the imprisonment of councillors and of restrictions of freedom of language use (that is, restrictions on the use of Kurdish) by local authorities, and Ukraine. 2. It has quite often been the practice of the Congress to undertake a monitoring exercise in relation to a particular country at the time of its signature and ratification of the Charter, and this was the case in relation to the United Kingdom. Monitoring took place during 1997 and 1998 in the period between signature and ratification. It should, however, be noted that the report on the United Kingdom146 specifically observed that the country had already been identified147 as one of six countries148 in which major problems of local democracy existed. In the United Kingdom, the concerns were: a reduction in the powers of local authorities because of the dismantling of some authorities and the transfer of functions to quangos; limits imposed by central government on local-authority spending; and the (then) difficulties with the United Kingdom signature and ratification of the Charter.

For the first United Kingdom national monitoring, the rapporteurs appointed were Henry Frendo, the mayor of a town in Malta, and Hans Ulrich Stoeckling, head of the cantonal government of St Gallen in Switzerland, and the monitoring team visited the United Kingdom during 15 to 17 December 1997 (London) and 26 and 27 March 1998 (London and Edinburgh). This was, of course, a time of impending change following the election of the Labour government in May 1997, and reform expected in the form of devolution to Scotland, Wales and Northern Ireland as well as in London, and in relation to English local government in general. Inevitably, the findings of the monitoring exercise and the content of the ensuing recommendation have been very substantially overtaken by events. The core recommendations of the Congress were addressed to the government and Parliament of the United Kingdom:

145. In a recommendation which apparently became confined to local (rather than a combination of local and regional) democracy for internal administrative reasons within the Congress. 146. See 1998 CG (5) 7, published with Recommendation 49 (1998). References in what follows are to paragraphs in those two documents. 147. Congress Resolution 58 (1997). 148. The others were Bulgaria, Croatia, Latvia, Moldova and Ukraine.

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26 . . . [T]o pursue the major reforms in the local government field in the light of this Recommendation and of its appendix,149 which gives further details on the Rapporteurs’ findings, and in particular: i. to establish a legal framework giving local government a clear basis and a general competence for the benefit of its citizens and other inhabitants, including the issue of community leadership; ii. to clarify the distinction between powers delegated to local government by national government, as compared to local government’s own powers; iii. to increase seriously local government’s financial capacities by developing a much higher share of own income as compared to State grants, and by abolishing practices like ‘rate capping’, as well as by re-localising the ‘business rate’; iv. to give local authorities greater accountability towards citizens; v. to reduce the power of outside bodies on local government management in fields as ‘value for money’ or ‘best value’; vi. to ensure that elected mayors/councillors, etc., who have to work full time, should be able to draw a decent income from their activity without being placed in an awkward position when compared to the senior officials working for them; vii. to establish that the principles accepted by the United Kingdom within the European Charter of Local Self-Government should be incorporated in the domestic law and considered as binding by the British Courts.

That 1998 recommendation has now, of course, been overtaken by the new recommendation of 2014.150 It was, in any event, a recommendation of its times and would have struck any British observer as somewhat Delphic. It 149. This expanded extensively on the core recommendations in paragraph 26. It also included comments on the terms of the United Kingdom declarations at the time of ratification. There was sympathy for the exclusion of Northern Ireland from Charter coverage but a hope that ‘if the peace process continues, the Charter could be applied there at a later stage’. 150. It should be noted that a wholly informal assessment of United Kingdom Charter compliance was undertaken in 2002 by Jeremy Smith. See J. Smith, ‘The European Charter of Local Self-Government: Does the UK Government comply?’ (2002) 5 JLGL 90. In 2013, Smith contributed a revised view. See ‘Local Govern­ment in England: do we comply with the European Charter of Local Self-Govern­ ment?’, at http://www.local.gov.uk/c/document_library/get_file? uuid=1f372790-a6b2-4e78-90ad-30cff0016f2a&groupId=10180 His principal conclusions were that there is compliance with ‘the large majority’ of the

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revealed some of the sensitivities and problems of any Congress monitoring exercise. To take two specific instances: on the one hand, the suggestion in paragraph 26 ii (above) is curious. What would it mean, in a British context, to clarify the distinction referred to? Though a distinction drawn in the Charter, and familiar in many European countries, it is not one of great meaning in a United Kingdom context. And, secondly, the suggestion in paragraph 26 vii seems to show little understanding of what ‘incorporation’, in the sense used, might have involved. Though it seems unlikely that the offer was ever taken up, in the concluding paragraphs of the recommendation, the Congress proposed that the United Kingdom authorities be offered assistance with detailed discussion of intended reforms, and recommended that the financial means for this assistance be made available. The 2014 recommendation on the United Kingdom151 was based on a report152 by Ms Angelika Kordfelder (Germany) from the Chamber of Local Authorities and Mr Alexander Uss (Russian Federation) from the Chamber of Regions. The rapporteurs and their team had visited the country in May (London, Leeds and Edinburgh) and November (London and Cardiff) 2013, and the approach of the Scottish independence referendum did not go without a mention in their report (paragraph 2.1.3). The recommendation was confined, of course, to Charter matters. After formalities and a noting of general Charter compliance (including an improvement since devolution to Scotland and Wales) and a welcome for the Localism Act 2011, the ‘successful partnership approach’ adopted in Scotland, Wales and Northern Ireland, and the important role played by local authority associations throughout the country, the Congress expressed ‘concern’ about six issues: there was insufficient constitutional and legislative recognition of local selfgovernment and the new general competence for local authorities (in England) did not go far enough to satisfy the ‘spirit’ of the Charter; consulta­ tion arrangements were insufficient; local authorities had insufficient financial resources (despite the localisation of business rates in England in 2013); the status of elected councillors (including office-holders) was insuffi­ cient; local authorities had insufficiently prominent leadership and coordinating functions; and there was too much oversight by central government (despite some steps taken).

Charter’s articles, but noting problems with the legal recognition of the principle of local self-government, central supervision/regulation and finance. 151. Recommendation 353 (2014). 152. The recommendation and accompanying report may be found at: https://wcd.coe.int/ViewDoc.jsp?id=2177789&Site=COE&BackColor Internet=C3C3C3&BackColorIntranet=CACC9A&BackColorLogged= EFEA9C

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Accordingly, the Congress asked the Committee of Ministers to invite the British authorities to: a. explore the constitutional and practical issues around the possibility of formalising the principles and mechanics of the relationship between central and local government, in the light of the Charter, the arguments developed by both local elected representatives, their associations and the Political and Constitutional Reform Committee of the House of Commons and the devolved Parliaments where applicable for a more codified approach; b. develop more institutionalised, uniformly time-framed and legally guaran­ teed consultation arrangements for local government, taking into account the necessity or opportunity for local authorities to consult their local popu­ lations, at least regarding important issues, and in this regard, consider the partnership approach and the co-operation experiences in Scotland, Wales and Northern Ireland for the relations between central government and English local authorities; c. reduce the financial burden of local authorities, particularly in England (where local government has powers without sufficient funding to implement them, a situation that curbs local authorities’ freedom of action and decisionmaking considerably) but also in the other entities of the United Kingdom, further developing a diversified base of local revenue to cope with the services they provide; d.  re-evaluate the work of executive councillors so that their status corresponds better to their responsibilities, with a view to improving the engagement of citizens and particularly the younger generation who might be discouraged by the economic disadvantages of full-time council work; e.  give elected representatives of local government leadership and coordinating functions vis-à-vis other service providers within their local area; f. carry out the oversight of local government in a manner to ensure that the involvement of the controlling authorities is kept in proportion to the importance of the interests which it is intended to protect as set by Article 8, paragraph 3 of the Charter; g. review, in the near future, the United Kingdom’s declaration in the light of the current situation as this refers in part to authorities which do not exist anymore and do not include the Greater London Authority and Northern Ireland.153 153. In addition, there was an invitation to consider the ratification of the additional protocol to the Charter and the additional protocol to the European Outline Convention on Trans-frontier Co-operation between Territorial Communities or Authorities (ETS No. 159).

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An early response to the recommendation came from the United Kingdom minister, Baroness Stowell, present at the Congress session at which it was adopted.154 After general remarks about the virtues of democracy and the monitoring process in general (provided it was practically focused and accurate and every member state had confidence in it)155 she went on to reject the criticisms made about central government oversight and local funding. She expressed surprise at the focus on councillor status (rather than benefits to citizens) and rejected the calls for the formal strengthening of local authority community leadership, consultation and the constitutional status of local government. Baroness Stowell made no specific reference to the invitation (at paragraph g. above) to review the United Kingdom’s declaration under the Charter. As earlier discussed,156 the continued failure to include Charter coverage of Northern Ireland is very difficult to defend, and it is surprising that the issue was not pressed much more firmly. Less easy to explain is the injunction to include Greater London within the Charter. Greater London is probably best regarded as a regional, rather than a local, authority and, while regions are amenable to Charter coverage, it may be viewed as strange for the Congress to press for this. F CONCLUSIONS A full evaluation of the procedures available for assessing the degree of Charter compliance achieved by member states of the Council of Europe will have to await the further discussion in Chapters 5 and 6 of Congress monitoring and its impact. There is more to be said, in particular, about how the way that Charter monitoring is done by the Congress affects the judgements it is able to make about Charter compliance and how these may be contrasted with how courts would undertake the same function. In the meantime, however, two broad conclusions may be drawn from the 154. https://wcd.coe.int/ViewDoc.jsp?Ref=20140326-Baronness&Language=lan French&Ver=original&Site=COE&BackColorInternet=C3C3C3&Back ColorIntranet= CACC9A&BackColorLogged=EFEA9C 155. In, for example, her opening reference to ‘Council of Europe speak’, Lady Stowell displayed a degree of scepticism about the process – though not the scepticism shown by the Daily Mail headline (8 March 2014): ‘Europe attacks UK over council cuts: Anger as obscure committee – which includes an ally of Putin – lectures us over austerity measures’. See: http://www.dailymail.co.uk/news/article-2576119/Europe-attacks-UK-councilcuts-Anger-obscure-committee-includes-allay-Putin-lectures-austeritymeasures.html 156. See 75 above.

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discussion so far. The first is that, of the two systems available for Charter enforcement, monitoring by the Congress has loomed much larger than adjudication by courts. Indeed, it may even be concluded that direct judicial enforcement of the Charter has hardly occurred whereas, very recently ratifying countries apart, no state has been left untouched by Congress monitoring. This is partly a consequence of the very patchy reception of the Charter into their legal systems by member states and an apparent reluctance of litigants (and, therefore, courts) to have direct recourse to Charter-based arguments where arguments based on national constitutions and legislation are also available.157 But, secondly, Charter monitoring has flourished. The Congress has developed and refined its idiosyncratic procedures for monitoring visits, reports and recommendations. Recently, these have been intensified and systematised, and there is a new commitment to the frequency and regularity of monitoring visits noted above. Though the fall in the number of Congress monitoring recommendations issued in 2014 to only five may provide a reason to doubt this commitment,158 Charter monitoring remains the stated primary purpose of the Congress. The effects of the Congress’s commitment to the Charter – on the monitoring processes and outcomes, on the Congress, and on local self-government across Europe – will be considered in the next chapters.

157. It may, of course, be argued that, in some cases, these may be indirectly sourced to a Charter origin. See 89. 158. There was a reference in ‘Congress Presidency 2012–14: Activities and Achieve­ ments’ to the need to reduce monitoring missions by 27 per cent in 2013 (p. 7).

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5 Charter Interpretation and Application1

A INTRODUCTION Chapter 4 focused on the means available for enforcement of the obligations taken on by states on ratification of the Charter. On the one hand, there is the possibility of enforcement by domestic courts whose availability depends, from state to state, on the legal status of the Charter in the particular state and on the competence of domestic courts to handle Charter issues. And there is only a scant record of such activity in courts in practice. On the other hand, there is the system of routine monitoring of state compliance by the Congress of Local and Regional Authorities. Central to both enforcement models is the question of how to interpret and apply the text of the Charter, whether at the hand of national courts or of the Congress monitoring procedures. On the face of it, these processes of interpretation and application are the same sort of activities that one encounters in constitutional or human rights review, and the ways in which such principles may be applied to Charter practice are considered in Section B, with a particular focus on the problems involved. In Section C, however, it is argued that, while those interpretative principles may, indeed, be relevant to Charter application by national courts, they have been largely irrelevant to the Congress monitoring process. The reasons for this and then the consequences for Congress monitoring are explained. B CHARTER INTERPRETATION When we say that the systematic monitoring of the states’ performance under the Charter2 is, on the face of it, the same sort of activity that one encounters    1. See C. Himsworth, ‘Monitoring Standards of Local Self-Government’ in A. Mengi (ed.), Yerellik ve Politika Küresellesme Sürecinde Yerl Demokrasi (IMGE, 2007). See also C. Himsworth, ‘Treaty-Making for Standards of Local Govern­ment: The European Charter of Local Self-Government and its Possible Applica­tion beyond Europe’ (2011) 5 Sungkyunkwan J of Science & Technology Law 19.    2. Within the wider context, it has to be remembered, of reporting more generally on ‘the situation of local and regional democracy’.

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with other forms of treaty-based (or indeed constitutional) review, we mean that it is the familiar process of matching state law and practice against the terms of the Charter to establish whether the prescribed standard is being maintained. A court has simply to determine whether the law which has been enacted or the action taken complies with the ‘higher law’ restrictions laid down. But it is not, of course, ‘simple’. Questions of interpretation are necessarily involved and, therefore, questions about how the inevitable linguistic ambiguities in human language are to be resolved. In the case of the Charter, two considerations combine to produce, in its substantive provisions,3 language which, at key points, is difficult to interpret and apply. One is the linguistic generality which we know was thought necessary at the drafting stage4 to accommodate the great variety of institutional tradition and practice across Europe. In some measure, the opportunity for states to engage selectively with the Charter’s terms5 (and thereby avoid the application to them of provisions which might create difficulties in their application) enables a more focused interpretation but it is the declared ambition of those who promote the Charter to attain continent-wide application of all its terms. That is, however, achieved at the price of abstraction and generality of language. The second, related, consideration is the reluctance of the founding states of the Charter to create too big a stick for their own backs. There was a need for a substantial ‘margin of appreciation’ to be accorded to them. What this has produced is language, at key points in the Charter, which is either expressly protective of state interests or which, through its generality, renders the definition of particular Charter standards so imprecise as to make critical (and thus hostile) interpretation very difficult to sustain. Thus, in Article 3(1), the concept of local self-government is defined as the ‘right . . . within the limits of the law, to regulate and manage a substantial share of public affairs’. ‘Within the limits of the law’ is a phrase used elsewhere – for instance, its use in Article 4(2) to qualify the right of local authorities to ‘have full discretion to exercise their initiative’ – and it is far from clear to what extent it is intended to, or does in fact, restrict the scope of the Charter right. And who, in monitoring mode, would, in any event, presume to define with precision what actually amounts to a ‘substantial share’ of public affairs? Clearly a local government system which gave virtually no powers to local authorities should fail the test but, beyond that, what can be said, bearing in mind that, in many countries, local authorities generally have nothing like the range and weight of functions familiar in, for instance, the United Kingdom or the Scandinavian countries?    3. Discussed more systematically in Chapter 3.    4. See 28.   5. See 69.

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Elsewhere in Article 4 there is a softening of the provision made by the use of such language as ‘generally’ and ‘normally’ and ‘insofar as possible’. The important provision in Article 4(4) requiring powers to be ‘full and exclusive’ is qualified not only by ‘normally’ but also by ‘except as provided for by the law’! On one reading, the state has apparently only to provide that the undermining or limiting of local authority powers is done by ‘the law’ to ensure Charter compliance. Similarly, Article 6(1), which is designed to ensure local authority freedom to ‘determine their own internal administrative structures’, is subject to the proviso ‘without prejudice to more general statutory provisions’. The requirements of Article 7(2) for financial compen­ sation for councillors are hedged about with the language of ‘appropriateness’. Article 8(2) restricts the exercise of administrative supervision of local authority activities but states only that they be ‘normally’ confined to ensuring compliance with the law and with constitutional principles. In Article 9(1), the entitlement of local authorities to financial resources is subject both to the elusive requirement of ‘adequacy’ and to ‘national economic policy’. It may be responded that this is something which can be said of any ‘higher-level’ document containing constitutional or treaty provisions. It is the normal condition of such documents. Very often bills of (human) rights, among them the echr itself, are cast in very general language. Article 3 of that convention simply provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’ – though some other articles do supplement the simplicity of their opening propositions with more detailed follow-up qualifications. But the tendency towards generality in the language remains. So, when in the Charter, the ‘bill of rights’ for local authorities, we find references to rather open-ended guarantees of a ‘substantial share of public affairs’ [Article 3(1)] or of ‘adequate financial resources’ [Article 9(1)], there is no immediate reason for surprise. But, assuming the need actually to give meaning to these phrases in a process of applying the Charter in real-life situations rather than merely nodding some sort of ritual obeisance to a symbol, how is a sufficiently precise understanding to be given to ‘adequacy’6 or a ‘substantial share’? In courts which apply the echr, including the European Court of Human Rights itself, there is, by now, a huge body of case law built up to assist in what might otherwise be an extremely difficult interpretative exercise. Those courts also have the advantage of operating alongside other human rights regimes (both inter­ national and national) whose jurisprudence may quite readily be invoked. They have the advantage, too, of dealing with documents that address the    6. A recommendation on ‘Adequate Financial Resources for Local Authorities’ [Recommendation 362 (2014)] was adopted by the Congress in October 2014.

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common condition of humanity worldwide, rather than a document whose compass is a relationship between tiers of government that cannot claim to be enjoyed in common, even in the countries of Europe to which it applies. In those circumstances, the problem of identifying a generally applicable meaning for a ‘substantial share of public affairs’ is apparent. This does not mean, however, that, were questions of Charter interpretation to arise routinely in courts, they could not be handled. To take the example of the ‘adequacy’ of financial resources in Article 9, it can readily be seen that ‘adequacy’ may be taken to have both a substantive and a procedural aspect to it. Though substantive adequacy may seem to be of greater importance – that is, the question of whether local authorities have enough resources to discharge their responsibilities – it is unlikely eventually to have very much traction in practice. One has to be quite sceptical about whether, and, if so, how such adequacy can be tested in any objective or scientific way – because of the (deliberate) vagueness and imprecision of the language itself. Adequacy is plainly a very elusive concept. It also has to be borne strongly in mind that the entitlement to adequate financial resources in Article 9.1 is expressly made subject to ‘national economic policy’ which, in terms, is a matter for ‘national level’ determination, whether in good economic times or bad. On the other hand, this does not mean that nothing substantive can be extracted from the formula. Presumably, if the resources available to local authorities (either collectively or individually) are self-evidently wholly irrationally or wholly disproportionately7 out of line with what the local authorities need, then that might be a basis for invoking the article’s protection. On this basis, the article could never provide a basis for finetuning local authority entitlements but, in an extreme case, it could be called in aid. In particular, it might enable irrational changes in funding (apparently unrelated to any change in statutory functions and unrelated to any evident change in national economic circumstances or policy) to be condemned. If there has been, for instance, a pattern over several years of a certain level of local authority funding and then, without any identifiable or claimed change in national economic policy and also without any noticeable change in local authority responsibilities, there is an abrupt cut in funding, then it may be reasonably supposed that there is at least a rebuttable presumption that funding is no longer adequate or commensurable. Another possible area of challenge might be where, despite the apparent allocation of decision-making    7. For a British observer, this might involve a reliance by analogy on the iconic case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 and apply a test such as whether a national law or practice was ‘so unreasonable that no reasonable state would adopt it’.

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on national economic policy to the state, there may be scope for scrutiny of assertions made about that policy and its claimed consequences for local funding in circumstances where there is no rational basis for the state’s assertions. If these substantive arguments have weaknesses because of the Charter’s own terms, there does seem, on the other hand, to be more to be said about the possibility of policing procedural adequacy. It can reasonably be inferred from the text of Article 9.1 (and other provisions) that central governments must be seen to be acting in accordance with procedures designed to achieve a sufficient degree of adequacy of funding. This may be taken to have at least three aspects. The first is that central governments must be seen to take into account criteria that are relevant to the assessment of adequacy. There must, in the first place, be published criteria. They must be reasonable and relevant. They must not be irrelevant, involving, for instance, self-evidently partypolitical criteria or criteria which, in some other respect, are clearly not aimed at securing adequate funding at all. This could relate to the way in which national economic policy is invoked or to the processes according to which total and then distributed levels of local authority funding are to be ascertained. The second procedural requirement is that of consultation with local authorities. This may be implied from Article 9.1 but it is also made explicit in Article 9.6. If there is a genuine process of consultation with local authorities, then there is a much stronger basis for claiming that adequacy has been achieved. Local authorities (normally through their associations) have been seen to have their say and thus at least the appearance (and even the reality) of a route to achieving adequacy has been secured. If, on the other hand, there has been no such consultation, then there can be much less prospect of a legitimate claim to adequacy. And the third requirement is that there must be rules in place to ensure that the procedures of financial distribution are transparent. The relevant rules must be published and the decision-making procedures and the decisions themselves must again be public. These procedural imperatives cannot, of course, be pressed too far. Nothing removes from the process of central government decision-making their power to make the final decisions in the areas (government grants) that they control. It is the acknowledged limitation of procedural protections that, as long as the hoops of relevant considerations and of consultation and of transparency have been jumped through, the actual power to decide still remains with the decision-maker. There will always be the danger (and even expectation) of final decisions which do not satisfy the beneficiary local authorities. Quite apart from the question of the non-specificity and malleability of much of the Charter’s language, and the lack of an international tribunal for its enforcement, it is quite reasonable to raise other questions about how well

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it could ever have been expected that the Charter could be applied across the great range of nations that now constitute the family of the Council of Europe. The Charter was never, of course, intended to provide the basis for the comparative ranking of the extent to which the different member states comply. In a comparison between one country and another, it is unlikely that their relative degrees of Charter compliance could provide a meaningful analysis. But, for the Charter to maintain a significant degree of credibility, it has to be imagined that it is possible to demonstrate that it can be applied across a great range of national governmental situations. This is also, of course, by way of comparison, a characteristic which is assumed to be true of those treaties that guarantee individual rights. Despite the different histories of the ratifying states, and their different social, legal, political and cultural conditions, it is broadly assumed that the rights of individual human beings within those states can be assessed against the single set of standards of the echr. The Strasbourg Court can make its way through the surrounding conditions to make judgments on the condition of the single individual located within them. It does not matter, for instance, whether he or she inhabits a small or large country nor what governmental institutions are deployed there. Though there will always be a surrounding ‘social’ element in the judgment made, the legal question of whether an individual’s rights are, on balance, being infringed can, we have to believe, be meaningfully and fairly objectively assessed. There may, it is true, be recourse to the principle of the ‘margin of appreciation’ which enables the court to give the benefit of the doubt to a state in situations of uncertainty, and this can be the route to admitting the relevance of surrounding conditions to the determination of a case in circumstances where there is a degree of ambiguity. But, in general, the principle that the autonomous rights of the individual can be indepen­d­ ently vindicated, whatever those surrounding conditions, shines through. How far, on the other hand, can this be true of the right to autonomy of local authorities? It may, at the most general level, be possible to assert, in the Charter’s preamble, that ‘local authorities are one of the foundations of any democratic regime’ but it is much less clear that a principle of such generality can be given, in the Charter’s substantive provisions, the purchase it needs to ensure the application of its more specific standards. A ‘local authority’ does not have the universal set of institutional characteristics that identify the essence of an autonomy worthy of protection. Instead, a local authority’s autonomy will inevitably be much more situation-dependent. Of the conditions that vary most across Europe, and which may create the greatest comparative difficulties, some that might be considered relevant are: (1) the historical development of the state and its system of local government; (2) the size of the state; (3) its federal/non-federal character or subdivision into regions; and (4) the ‘tradition’ of local government, for example, the general

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strength of local powers, the degree of privatisation of local services, the extent of ‘delegation’ of state powers to local authorities, and the arrangements for the state supervision of those authorities. Taking these in turn, and starting with the history of the state, the point that is most repeatedly and most significantly made is that the Charter was originally devised for a very different Europe – the Europe that was largely western Europe (including, of course, Turkey, and Cyprus) of the pre-1989 era. The Charter was drawn up on the assumption that most member states of the Council of Europe would have little difficulty in demonstrating their compliance with it. No one imagined that the Charter would soon be pressed into service as a means of providing standards of local democracy and as a measure of the transition to democracy of countries whose recent history had been dominated by the intense centralism of the Communist systems. In some states, there had never been an experience of genuinely autonomous local government. In the period since 1989, the select group of twenty ‘western’ countries have been joined by a group of others that have now achieved membership not only of the Council of Europe but also of the European Union, others which are candidates for accession to the Union, and others which aspire to that condition. Others, however, such as Russia and other parts of the former Soviet Union including the states in the Southern Caucasus, are not in these groups, and governmental conditions are hugely different from those in the pre-1989 Council of Europe member countries. But the Charter has been ratified by them all. A quite reasonable question to ask is whether the benchmarks of autonomy that the Charter offers can serve as a useful measure across such a broad spectrum of recent historical experience. Another measure of difference of the Charter states is their size. Once again, the contrast with the echr is an apt one. When one addresses the condition of individual human beings, the reasonable assumption can be made that the minimum standards to be applied should not vary according to the size of the country in which the individuals live. In Poland, Turkey and Russia, on the one hand, and Cyprus and Malta, on the other, prison conditions or the efficiency and justice of criminal trials can plausibly be measured by the same standards, so far as the impact on individual rights is concerned. Arguably, however, it is different with local democracy where, inevitably, so much depends upon the operation of local self-government as a system and where systems tend to vary very greatly according to their size. The size of a country may not directly determine the size of local government units – many large countries, France for example, have had a tradition of mainly small authorities8 – but the relationship between the two levels of government and, therefore, the impact on local autonomy which is the    8. France has over 36,000 communes.

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product of that relationship are almost certain to be different. Nothing in the Charter speaks directly of the size of the countries to which it applies but it may be difficult to imagine how its standards can apply equally in all. Perhaps more important still are the differences, for the purposes of Charter application, between, on the one hand, unitary states and, on the other hand, those states, such as Germany, Switzerland, Austria and perhaps Belgium, which are in the tradition of classical federalism, or those other states which have adopted fairly strong forms of devolved regional govern­ ment, such as Italy, Spain or the United Kingdom. Once again, the Charter itself is silent on this matter. It is well understood and, indeed, made clear in the Charter’s Explanatory Memorandum9 that, while in unitary states, the autonomy of local authorities is to be measured by reference to their relationship with the institutions of the central government, the relevant relationship in federal or quasi-federal systems is likely to be with the ‘Land’, ‘state’ or devolved region. But, while this expresses well enough the formally correct position, there are still clear differences between the functioning of states in which local authorities constitute all the decentralised government that there is and, on the other hand, those states in which democratic selfgovernment operates at a number of levels. In the latter group there may be different pressures on the autonomy of local authorities simply because of the competition with the regional level for political space. Once again, the Charter is formally blind to these variations in governmental practice but it cannot be doubted that they may have a bearing on the degree of local autonomy the Charter is intended to protect. The fourth characteristic varying from country to country was referred to above as the ‘tradition’ of local government. This may sound less convincing as an obstacle to the application of the Charter. It might be said that the whole point of a general set of rules and principles is that they can be applied, whatever the local practice or tradition of local government may be. The Charter is the means of establishing whether such practices or traditions are compatible with the principles of local autonomy, and, if not, questioning their validity. It must not bend to accommodate local circumstances. But there is, in practice, a difference in the application of Article 8 of the Charter (about administrative supervision) to those countries that have a formal institutionalised system of state supervision in place and those that do not.10 The same article distinguishes between powers ‘delegated’ to local authorities and those powers that are the authorities’ own. Such a distinction has more or less relevance depending on whether a state does or does not make use of the practice of ‘delegation’. Whether or not, in the application of Article 3,    9. For example, in relation to Article 8 (supervision).   10. See 55 above.

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local authorities have the power to regulate and manage a ‘substantial share of public affairs’, may depend on the general disposition of power within the state, providing, for instance, for greater or lesser degrees of service privati­ sation (something that has changed greatly across Europe since 1985) or for the use of other specialised forms of public provision such as a national health service. It is certainly the case that one effect of such variations has been the reliance of some countries on relatively large numbers of very small local authorities while others have smaller numbers of much more powerful authorities. Both situations appear to be capable, in principle, of being Charter-compliant. But they do reflect very different national approaches to the ways in which local self-government may be deployed. And, perhaps more controversially, they may reasonably result in differences of approach to the question of how far the business of local authorities can be legitimately controlled by central government. It may be said that central governments are not justified in interfering with the decision-making of local authorities which, in any event, perform only very limited tasks of their own. Weak authorities should be allowed to enjoy their autonomous powers, and the truth is that central government has little motivation to interfere with their operation. On the other hand, where large and powerful authorities perform significant functions, such as the provision of secondary school education, spend a significant proportion of public revenues, have a significant capacity to affect national policy goals, and also have the capacity through the decisions they make to create unevennesses of service provision across the country, there is a much stronger inclination on the part of central govern­ ments to intervene in the interests of a degree of equality and uniformity – whether by strong policy direction, financial controls or the monitoring of standards of service delivery. Arguably, the grant of strong local powers subject to a degree of central restraint produces the same overall degree of local ‘autonomy’ as the grant of weak local powers in the first instance. But that is not an argument that fits well with the apparent demands of the Charter which itself makes no allowance for the relative strength of local authorities when it forbids policy-based administrative supervision. This is a difficulty which is encountered in an acute form in the United Kingdom where there is undoubtedly a history of local authorities with broad powers and with responsibility for about 25 per cent of total national public expenditure but where there are also corresponding concerns about the degree of central government intervention that these conditions have attracted. Should the United Kingdom be criticised, in Charter terms, for having relatively strong local government subject to relatively intrusive central controls rather than having a much weaker form of local government – but with correspondingly less central control – in the first instance?

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A legal or political analysis? Thus far, despite the problems just listed in the presentation of the analysis of the interpretative process required in Charter monitoring, there has been a starting assumption that it is a process capable of comparison with those adopted by courts, whether domestic courts in the process of constitutional interpretation or international courts such as the European Court of Human Rights in its interpretation of the echr. It has also to be acknowledged, however, that, in the case of the Charter, there are good reasons for viewing monitoring as a process that is better regarded as having not only a legal character of this sort but also what we may call a distinctively ‘political’ aspect.11 The Congress itself frequently refers to ‘political’ monitoring12 and Charter monitoring, on this view, takes on a hybrid character. It is difficult to believe that there are any direct comparators. The process is sui generis.13 A number of factors combine to produce this distinctive process and they will be considered in turn: 1. The Decision-making Personnel A principal difference between Congress monitoring and rights adjudication by courts is that, in courts, the decision-making is, of course, done by legally qualified and legally trained judges. Within the Congress and the Council of Europe procedures, however, politicians are in the decision-making driving seat. It is true that there is not always a bright line to be drawn between the involvement of legally trained personnel and ‘lay persons’ in adjudicative processes. A well-known instance used to be that of the French Conseil Constitutionnel where the decisions to be made are plainly of a judicial character – are the legislative provisions proposed (or, since March 2010, actually enacted)14 compatible with the French constitution? Until recently,   11. For an important assertion of the political value of the Charter but, at the same time, an insistence on its ‘irrefutable legal value’, see F. Merloni, in The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006), p. 47.   12. See, for example, http://www.coe.int/t/congress/Activities/Monitoring/default_ en.asp?mytabsmenu=3   13. It is important to emphasise that this description of Charter-based analysis as hybrid or sui generis is confined to the Congress’s own model of Charter monitoring. This does not, of course, prevent commentators from adopting much more deliberately legal approach. Examples would include the analyses of United Kingdom Charter compliance by Jeremy Smith. See 115 above. See also Sigrid Stokstad’s Norwegian analysis at http://sciencenordic.com/ norwegian-municipalities-lack-legal-safeguards   14. OL No. 2009–1523 of 10 December 2009.

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however, the membership of the Conseil was drawn from the ranks of former politicians who lacked any judicial background. Rather differently, it is also commonly the case that government ministers will be called upon to exercise a judicial (or ‘quasi-judicial’) power, without any formal legal training. This is certainly a widespread feature of British government. And also well known in the United Kingdom is the deployment of lay persons as ‘side members’ of tribunals chaired by a lawyer. No doubt, in most cases, the routine absence of legal qualifications among some or all of the decision-makers is thought to be institutionally corrected by the presence either of legally qualified decision-makers or of legal advisers. Decisions in a judicial form may be issued with due legitimacy. In the Congress and the Committee of Ministers of the Council of Europe, however, decision-making is, through and through, in the hands of politicians. We have seen that the adoption and promulgation to states of conclusions as to their Charter compliance are formally made by the Committee of Ministers. The committee does this on the recommendation of the Congress, on the recommendation, in turn, of its Monitoring Committee. That committee acts in response to a report and draft recommendation produced in the name of appointed rapporteurs. All personnel at all levels are politicians – ministers (but usually their delegates) at the final stage, and below that, the local politicians of the Congress. It is true that monitoring teams are accompanied by a member of the Group of Independent Experts who often brings to the process legal expertise (and normally in practice prepares a draft of the monitoring report) and, at all stages, Congress bodies have available to them the advice and support of the secretariat. By these means, the application of Charter terms, along with the terms of the Regional Reference Framework15 and the other relevant documents, does take on a legal dimension within a broader pattern of decision-making by politicians. In relation to its Group of Independent Experts, the Congress states: ‘In this sense, the primary mission of the Group is to provide legal assistance to the Congress within its political mission.’16 Despite the contribution of these additional participants (none of whom is guaranteed to possess legal expertise), however, the predominance in the decision-making personnel is of non-lawyers. It is not inevitable that this would preclude the application of judicial styles of approach but we shall find that, along with the other factors involved, a non-judicial stance is, in fact, adopted.

  15. See 176 below.  16. http://www.coe.int/t/congress/Fonctionnement/WorkingGroups/default_en. asp?mytabsmenu=2

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2. The Style of Enquiry The process of human rights or constitutional interpretation is conditioned not just by the personnel involved but also by the procedures adopted to further the court’s enquiry and eventual decision. Typically, the focus is on the arguments presented by the claimant or petitioner that a breach of his or her rights has occurred or is imminent.17 Those arguments are opposed by the respondent state or public body. Other parties may be admitted, depending on their interest in the case, and, if they have a contribution to make, amici curiae may also participate. The focus remains, however, on the alleged breach. The breach has to be clearly stated and argued for. The respondent state has to have the opportunity to know and then to contest the allegations made. The interpretation of the asserted right and any qualifications to which it may be subject are immediately at issue. The process does not need to be specifically ‘adversarial’ or, on the other hand, ‘inquisitorial’ in nature – the extent to which the judge may determine the course of the proceedings may vary – but, however conducted, must be such as to enable the case on each side to be presented, argued for and contested by the opposing side. The role of counsel here (and also of legally qualified judicial assistants) is of great importance. The interpretative process which emerges is one that, in the modern age, is very rarely confined to the scrutiny of, and contestation over, the text of the primary document – whether constitution or bill of rights – taken alone. Much more usually, that process becomes one of interpretation in the light of previous jurisprudence, whether domestic or international and whatever the formal status of the decisions invoked. In, for instance, the adjudication which arises under the echr in the Strasbourg Court itself or in the national courts of the Council of Europe’s member states, the debate on a state’s compliance with the convention is inevitably assisted by calling in aid the contributions to be derived from previous relevant decisions of the Court of Human Rights, and national courts in Europe and, indeed, from countries elsewhere, such as Canada, the United States or South Africa, which have something to offer because of the textual parallels between the echr and the national constitutions. It is these features of a structured debate and a range of source material (of varying and debatable relevance and authority) that enable the construction of a sophisticated interpretative enterprise. They enable and demand the thought necessary for the solution of small-scale interpretative conundrums and the generation of theories and principles to

  17. Though there is, in some jurisdictions, a facility for obtaining an advisory opinion from a court in an ‘abstract’ challenge unrelated to any specific alleged breach of the law.

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inform the interpretative process as a whole. How to resolve ‘hard cases’.18 How to view the text itself, whether as having a meaning fixed over time or instead as evolving as a ‘living instrument’ or ‘living tree’.19 Whether and, if so, how far to incorporate into the interpretative process the presumed views of the authors of the text (the ‘founding fathers’) as to how it should be interpreted in the future, as an aid to the resolution of the ambiguities. If the Charter of Local Self-Government had been exposed to persistent scrutiny in a court of a standing similar to that of the European Court of Human Rights or in national courts with competence to apply it, then we might have expected that the interpretative issues raised earlier in this chapter, relating, for instance, to ‘adequate resources’20 would have been thoroughly explored and perhaps, in some measure, resolved. It is unlikely, in the light of the Charter’s unique role as a guarantor of local authority rights, that there would have been the same recourse to international jurisprudence beyond Europe but the opportunities for the emergence of a body of European case law would have been there. It is even possible that, had the Congress adopted a different, more deliberately judicial approach to the application of the Charter, it might have led to a similar result. If, even with the other institutional actors in place, a system of monitoring by ‘experts’21 had been adopted rather than the eventual wholly political procedure, then, again, the style of investigation might have been different. But, in practice, the style of enquiry has precluded a ‘judicial’ role for the Congress. In the country monitoring process, there is no one who acts as counsel to the inquiry, with the duty formally to raise and argue for possible Charter breaches by the state under investigation. It is no one’s role formally to identify the specifics (or even the generality) of possible Charter infringements. Similarly, no one appears on behalf of the state to respond to any ‘charges’ made. The Charter’s text is, of course, available in the background but nothing about the Congress’s procedures compels serious engagement with the Charter’s terms in the manner of an international or national court.

 18. The language of Ronald Dworkin in Taking Rights Seriously (Harvard University Press, 1978).   19. A notion especially familiar in Canadian constitutional law. See Edwards v. Canada (A–G) [1930] AC 124. The notion of a ‘living instrument’ has taken on a pejorative use in relation to the echr at the hand of, for example, Lord Sumption of the United Kingdom Supreme Court. See http://www.supreme court.gov.uk/docs/speech-131120.pdf   20. See 123.   21. See 96 above.

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3. The Style of Reporting Intimately related to the enquiry stage of monitoring is the style of report and recommendation adopted by the Congress. The system for the formal transmission of recommendations to the Committee of Ministers is probably an inevitable result of institutional relationships within the Council of Europe, and nothing is lost by that procedure itself. Basing such recommen­ dations on findings included in a report presented by rapporteurs appointed for the purpose is also, in this context, unproblematic. Both documents might, all other considerations aside, have become the vehicle for the drafting of conclusions on Charter compliance on a more-or-less ‘judicial’ model. This has, however, not been the case in practice. In line with the Congress style of enquiry just discussed, the style in which conclusions are reached and reported is quite different from that of courts. They are not cast, for instance, after scene-setting introductions to the constitutional and broader legal environ­ ment and governmental practice, as concluded judgments on arguments presented as to a country’s compliance or not with the Charter’s requirements. The arguments have rarely been presented to the rapporteurs in that way. There has never been the articulation of arguments and authorities in support that might compel a judicial style of response to resolve them. There is no reference, of course, to the earlier views of an authoritative court – because there is no such court. There is, in practice, no comparative reference to conditions in another country on which a relevant Congress recommendation has been produced. There is virtually no engagement with the Charter’s language that qualifies the local authority rights conferred. There is discussion of how a state may fall short of its obligations under Article 9 to ensure the provision of ‘adequate resources’ for local authorities. But this lacks the specificity of judicial interpretation, and there is never serious discussion of how the provision actually made may nevertheless be justified by reference to the demands of ‘national economic policy’. So no evidence of the balancing of considerations involved or of the proportionality of the state measures which may arguably have produced a Charter breach that are the meat and drink of rights adjudication in courts. And the other aspects of potentially difficult Charter interpretation and application22 are simply avoided. The teasing out of these interpretative issues is bypassed by a form of presentation of recommendations which, rather than engaging with issues as purely legal questions of Charter compliance, instead includes, alongside a summary of recent developments in the country (and, in particular, develop­ ments since any previous Congress recommendation): a a statement of the country’s general compliance with the Charter or, at least, progress towards that condition;   22. See 120 above.

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b a list not of Charter breaches (with supporting argumentation) but of ‘regrets’ about certain conditions discovered in the country; and c a list of ‘suggestions’ which the Congress recommends to the Committee of Ministers to be relayed to the country concerned and ‘inviting’ a response. C THE MONITORING STYLE OVERALL Once the case has been made that, in consequence of the issues we have considered under the headings of decision-making personnel, styles of enquiry and styles of reporting as the conditioning factors, Congress recommendations lack the interpretative characteristics of judicial decisions, it may be useful to offer a few additional words about the resulting charac­ teristics of the recommendations actually produced. A summary account of some recent recommendations was included in Chapter 4 23 but some more general observations about the style and content of Congress recommen­ dations are appropriate: 1. That general style of presentation of recommendations does seem to affect content. It is a combination of: the preambular style of introduction; the recollection of past events – constitutional, legal and political; the welcome given to developments regarded as positive; the regrets expressed about negative developments; and the suggestions made to improve the condition of local autonomy in the future. A court would normally formulate a judgment on current Charter compliance unencumbered by extraneous views ‘regretting’ how the state reached the condition of non-compliance and unencumbered also by suggested measures to reduce non-compliance. On the alternative model adopted by the Congress, the language used is less precisely judgemental – the Congress rather gratuitously and patronisingly (some may say) ‘regrets’ or ‘notes with concern’ rather than finds national law and practice incompatible with the Charter; it has a further tendency towards patronising states when the Congress ‘expresses satisfaction’ with positive developments; and it looks forward to the implementation of future measures and to further ‘progress’ – a process to be supplemented by the Congress– state dialogue procedures reinforced in 2013.24 2. The emphasis on the criticism of state policy and practice, and then on its improvement, rather than the Congress confining itself more strictly to   23. See 111 above.   24. See Resolution 353 (2013).

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Charter compliance has other effects. Many may be viewed as forms of ‘overreach’ – going beyond conclusions derived from the actual terms of the Charter and, therefore, beyond the remit of the Congress.25 3. If there is a general pattern to be discerned in the various forms that such ‘overreach’ takes, it is probably best categorised as illustrative of a fundamental tension at the heart of the work of the Congress.26 The Charter itself is designed to protect the autonomy rights of local authorities. This reflects the Charter’s origins as a document that bears comparison with human rights conventions and it provides the focus and rationale for the Charter’s provisions. It also provides the rationale for the manner of the Charter’s enforcement. This focus, however, ignores that other dimension in the critique of local government and, indeed, of other governmental institutions when their characteristics are set to be judged in terms of their compliance with standards of ‘good governance’. These standards might include reference to the ‘autonomy’ of the authorities concerned but they may also have much more, for instance, to do with the quality of the joint working of institutions (including those which are local or regional but also those which are central) rather than their claims to autonomy. ‘Good governance’ is concerned not only with relationships between governmental institutions but also with their relationships with the people they serve. It is concerned, above all, with the quality and efficiency of services delivered. It is concerned with value for money. It is concerned with the legality of authorities’ decisions and their compliance with the rule of law. ‘Good governance’ is also concerned with democracy – not merely with the representative democracy of the elected local authorities protected by the Charter but also with citizens’ rights to be informed about, and to participate in, the authorities’ decision-making. 4. It may be responded that the autonomy rights of local authorities and the demands of good governance are not incompatible, one with the other. Indeed, this argument was adopted when the Committee of Ministers of the Council of Europe adopted a ‘Strategy for Innovation and Good Governance at Local Level’ in 2008.27 That document listed Twelve Principles of Good   25. Overreach as used in the context of Charter monitoring has to be distinguished from the ways in which monitoring reports and recommendations will always roam beyond the Charter’s text, for instance when the Regional Framework Reference (see 175) or human rights issues (see 100) are discussed.   26. See 180 below.  27. http://www.coe.int/t/dgap/localdemocracy/strategy_innovation/strategy_ brochure_e.pdf

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Democratic Governance at Local Level (including fair elections, responsive­ ness, efficiency, effectiveness, openness, transparency, the rule of law, ethical conduct and sound financial management) and the strategy urged, as one of its objectives that ‘States and/or regional authorities create and maintain the institutional preconditions for the improvement of governance at local level, building on their existing commitments in accordance with the European Charter of Local Self-Government and other Council of Europe Standards’.28 More recently it has been powerfully argued on behalf of the Congress that the Charter is central to the general reform of decentralisation in Europe. Andreas Kiefer, the secretary general of the Congress, gave a speech in July 2013 at a conference on sustainable urban innovation.29 The Charter, he said, is ‘a true gateway to innovation’. But, in many respects, what Mr Kiefer was doing here was trying to square a circle which envelops the Congress in all it does. The point is not that the demands of the Charter should be seen as wholly incompatible with the demands of good governance. But its orientation is different. Its preoccupation with autonomy rights produces a very specific perspective. We witnessed the dilemma earlier in discussion of the Additional Protocol on the Right to Public Participation.30 From the point of view of the autonomy rights of local authorities, there is no place at all for a protocol that imposes new rules on how local authorities should do their business. We saw, however, that the pressures to offer a concession to good governance in the form of citizen participation forced the protocol on to the Congress agenda. They could not risk a lack of engagement. And at many other points, too, the demands of good governance produce an uneasy relationship with local autonomy and, therefore, with the requirements of the Charter. This is nowhere more evident than in Congress monitoring where that process produces the forms of overreach earlier mentioned. It leads the Congress off in directions that have insufficient basis in the Charter’s text and are, therefore, a deviation from the supervision of the maintenance of the legal standards imposed on states by the Charter’s terms. There are four categories of such overreach:   28. See also Congress 239 (2007) (and Congress Opinion 33 (2011) ) in which the Congress has declared that the Twelve Principles ‘are not only derived from and in accordance with the principles of the European Charter of Local SelfGovernment, but that they complement the Charter by focusing on the theme of good governance, a theme that the Congress has decided to follow in setting up the Congress Governance Committee’.   29. 10 July 2013, Münster, Germany. https://wcd.coe.int/ViewDoc.jsp?id=2086499&Site=COE And see below at 192.   30. See 81 below.

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(a) One is where the Congress urges measures that are not actually underpinned by Charter requirements. There is a relevant Charter rule but it doesn’t extend as far as to sustain what the Congress wants to be done. Article 11 of the Charter, for example, provides for ‘legal protection’ of the rights of local authorities. Authorities must have appropriate rights of access to the courts. The article makes no reference, however, to the rights of local authority associations to access courts. And yet, in the recent recommenda­ tions on Portugal,31 Moldova32 and Lithuania33, the Congress urges such access by associations.34 Of course, such access might be desirable. It might make a lot of good sense. But it is not sustained by the terms of the Charter. (b) A second category of overreach occurs where measures are recommended that have no direct Charter basis at all. Four examples may be given. Corruption is a major problem in the public administration of many European countries, and there is no doubt that it may act as a barrier to good governance. Reflecting wider Congress concerns with the quality of public administration, it may seem to be unobjectionable for the Congress to include recommendations that anticorruption measures should be adopted or improved. Such recommendations35 have no direct Charter base, however. Of course, a justification for referring to corruption might, with a little ingenuity, be reasoned from, for example, the need for local authorities to have the power ‘to regulate and manage a substantial share of public affairs’[Article 3 (1)], a power which, it might be argued, cannot exist in the presence of corruption. But, in part because few Congress recommendations are directly referenced to the Charter article on which they depend, no such justification is offered. A second example arises from a long-standing view in the Congress that capital cities should attract a special legal or constitutional status. In 2007, the Congress issued a recommendation on the matter.36 Arguments that capital cities should, indeed, have a special status may have some force. Certainly, many countries have adopted that view and have created a local authority status for their capitals which allows special powers to be conferred. Such arguments would not, however, justify a finding of Charter breach. But this has not stood in the way of the Congress regretting the absence of special provision and urging the adoption of a new law.37 There is the possibility of   31. Recommendation 323 (2012).   32. Recommendation 322 (2012).   33. Recommendation 321 (2012).   34. In the Report on Portugal, there are even suggestions that the composition of the constitutional court should be reformed!   35. For example, in relation to Italy. See Recommendation 337 (2013) paragraph 5j.   36. ‘Status of Capital Cities’ Recommendation 219 (2007).   37. See Bosnia and Herzegovina (in respect of both Sarajevo and Banja Luka), Azerbaijan, Moldova, Lithuania and fyrom.

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a slippery slope here. If there should be special provision for capital cities, then there is also a compelling argument for (other) very large conurbations to be specially treated. But there is no obvious Charter provision that would justify a recommendation to that effect. Indeed, Charter silence on the matter does leave some countries – France is a good example – quite free to have a system of municipalities with (formally, at least) the same competences but of all different shapes and sizes – ranging from Paris down to the tiniest commune. A third example of this form of overreach relates to local authority property. In the normal way, authorities do, of course, operate out of premises which they can call their own, whether these are for the discharge of specific services, such as the schools they maintain, or for the purposes of their general administration. There is not, however, a Charter right to council property. It may be assumed that the right, under Article 9 to adequate financial resources includes a right to the resources necessary to secure access to the property they need. But no right to property as such.38 When, therefore, the Congress does, for instance, comment critically on municipal property arrangements in Bosnia and Herzogovina,39 it is not easy to perceive a direct Charter base.40 And a fourth example has been where the Congress has made recommendations for the reform of governmental structures well beyond the scope of the local autonomy demands of the Charter. Perhaps most notorious in this category is the 2013 Recommendation on Spain. It states simply that Spain should ‘reform the institution of the Senate with the aim of conferring on this institution a real role of territorial representation’.41 Another example occurs where the Congress has become aware that a state has abolished or intends to abolish a ministry within central government with specific responsibilities for local government. Governmental arrangements do, of course, vary in this respect. Very often, several ministries or departments of the central or regional government have to relate closely to local authorities. These may include finance ministries, ministries of the interior and ministries with sectoral responsibilities for different policy areas. Often there is a ‘lead’ ministry which may be said to have a primary responsibility for the general oversight of local government. And, where the Congress observes that such a ministry (for local self-government or equivalent) is to be abolished, it may, of course, be right to interpret this as a reform that may have the effect of   38. The Congress did include a municipal property element in its protocol project. See 80 above, and also Congress Recommendation 132 (2003).   39. See Recommendation 324 (2012) paragraph 4f – ‘there is still no legal framework guaranteeing municipal property’.   40. Though, in the case of Bosnia and Herzogovina, the property problem was linked to a question about the local revenue base.  41. Recommendation 336 (2013) paragraph 5k. The related report contains substantial discussion of the issue.

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diminishing the significance to be given to local authorities within the overall system of government. And, in some instances, the Congress has used a Charter recommendation to urge the reinstatement of such a ministry – examples being the recent Recommendations on Moldova42 and fyrom.43 Once again, from the point of view of general considerations of good governance and with the health of local self-government in mind, these may be sensible suggestions. They have, however, no Charter basis at all. States are obliged to protect the autonomy and status of local authorities but there is nothing at all in the Charter that requires states to maintain specific institutions at the level of state government itself.44 5. A rather different category of overreach occurs where there is certainly a relevant Charter provision but the Congress recommendation goes beyond the limits of the Charter’s own purposes in the pursuit of wider goal. The best example is that of external supervisory control and there is Charter provision on this in Article 8 which does place limits on administrative supervision. Elsewhere, it has been noted that such supervision may be capable of taking various forms, though the primary target had been the tutelle administrative which was familiar to many countries in Europe.45 The justification for Article 8 is obvious. Undue external supervision may clearly impinge on local autonomy. Charter monitoring should carefully police the limits of legitimate supervision. What, however, is not directly authorised by the Charter is the pursuit of improved forms of external supervision. Those may, once again, be demanded by wider considerations of good governance. It may be thought that effective systems of external audit and of (usually) external ombudsmen are, in general terms, a good idea. They do not, however, directly serve the interests of local autonomy (and, indeed, may tend to sacrifice autonomy in the pursuit of a wider greater good) and have no Charter base. When, therefore, the Congress urges the strengthening of external audit (for example, to insist on value for money)46 or of an ombuds­man system,47 it does, again, overreach its monitoring functions.   42. Recommendation 322 (2012).   43. Recommendation 329 (2012).   44. For the same reason, there have to be questions about the appropriateness of Congress intervention [in the case of Portugal in Recommendation 323 (2012)] to recommend the setting up of special aid programmes and procedures to strengthen the economic competitiveness of local authorities and the establish­ ment of a ‘national stability board’ to ‘streamline budget objectives’.   45. See 55 above.   46. See, for example, Recommendation 334 (2013), (Georgia).   47. See, for example, Recommendation 321 (2012), (Lithuania) and Recommen­da­ tion 329 (2012) (fyrom).

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6. A final category of overreach occurs where the Congress again goes beyond the Charter’s limits not, as in those examples of ‘improved’ supervision of local authorities which, while not justified by Charter provisions, may not actually contradict its terms, but in such a way as to risk such contradiction. One of the most sensitive areas for the Congress is how to respond to those situations where it is plain that local authorities are so numerous and so small in terms of their population and so underresourced that they plainly do not have the capacity to discharge the responsibilities allocated to them. Efficiency (as an aspect of good governance) and autonomy (because lack of capacity tends to lead to a failure to discharge functions and the need for some sort of central intervention) are at risk and common sense (informed by principles of good governance) suggests two different solutions or a combination of the two. Both contain dangers in Charter terms. One is that the local authorities concerned should co-operate in the delivery of services. The other is a reorganisation producing mergers of local authorities. Both, if imposed from above, threaten autonomy. Article 10 (1) of the Charter demands the right to co-operate (but not an imposed duty to do so) and Article 5 requires consulta­ tion if there are to be boundary changes. In the light of these provisions, it is common for the Congress to recommend schemes of (voluntary) co-operation. It is very rarely, however, that it risks mention of the need for mergers. In the case of the 2012 Recommendation on the Czech Republic, however, that state was urged to ‘find a consensus on the possible alternatives which would lead to a process to gradually reduce the high number of municipalities by, for example, merging the smallest units, for a better functioning local democracy without destabilising the rural population which remains an important challenge for the government, or by developing intermunicipal cooperation’.48 7. What this tendency to overreach reflects is a crossing of the line between, on the one hand, the specific object of ensuring Charter compliance and, on the other hand, urging measures designed to achieve good governance more generally. Both are legitimate concerns of the Congress but the furtherance of good governance does not, in itself, justify intervention in the course of Charter monitoring. 8. Lest it might be concluded that the Congress’s engagement with the values of good governance implies a total commitment to some form of holism in its monitoring processes, this section should be concluded with two important corrective observations, one general and the other more specific. The general comment is that, while it must be the case that Charter compliance and the honouring of good governance at the local level are inevitably very heavily   48. Recommendation 319 (2012), paragraph 6b.

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dependent on the state of democracy at the national level, the Congress always steers carefully away from criticism of the general democratic condition of the states it is monitoring. It will be recalled that some of the Congress’s most severe recent criticisms have been directed at local democracy in Azerbaijan, Albania, Bosnia and Herzogovina, Bulgaria, Georgia, Hungary, Moldova, Romania, Turkey and Ukraine,49 and it cannot be any coincidence that these countries, in different aspects and to different degrees, would also be members of the same group of countries that would be criticised for the state of their national democracy. It is those states that carry the obligation to implement the Charter’s terms but the chances of Charter implementation by states whose own democratic credentials are lacking must inevitably be low. It is not, however, any part of the Congress’s role to blame non-implementation of the Charter on democratic conditions at the national level. Another, more specific, limitation occurs in those territories dotted across Europe where their hostile occupation by a neighbouring (Council of Europe) state makes the monitoring of the condition of local self-government in those territories wholly impractical.50 Northern Cyprus is a partial exception here because the Congress has visited that territory in monitoring mode51 but Transnistria (Moldova), Abkhazia and South Ossetia (Georgia), Nagorno Karabakh (Azerbaijan/Armenia), Kosovo and Crimea are no-go areas. In all cases, however, these gap territories result from conflicts between Council of Europe member countries, and recommendations to the Committee of Ministers contain no reference (or, in the case of Cyprus, very muted reference) to them. D CONCLUSIONS This chapter has focused on how the Congress has moulded and developed the monitoring powers delegated to them by the Committee of Ministers of the Council of Europe. Charter monitoring has taken on the distinctive mix of legal and political characteristics we have seen. It has retained its adherence to the legal base of the Charter’s text but has also acquired, through its special mix of monitoring personnel, procedural style and form of reporting, its political character. And this has been combined with the other developments discussed in Chapter 4 – in particular, the pursuit of a ‘followup’ strategy, the idea of continuous political dialogue with national governments about the quality of local democracy.52 On this model,   49. See 114.   50. See 75 above.   51. See Recommendation 178 (2005).   52. See, for example, Resolution 369 (2014) , Recommendation 356 (2014),‘Postmonitoring of Local and Regional Democracy in Bosnia and Herzegovina’.

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monitoring becomes a political process rather than merely a series of adjudi­ catory events. It reconfirms that monitoring is not a mode of ‘inspection’ but of political interaction, producing a ‘“virtuous circle” of monitoring, post­ monitoring and co-operation activities’.53 This is the monitoring route chosen by the Congress. The question raised, however, is whether it is effective and sustainable. The answer depends on a number of considerations. These include whether the current approach to monitoring contributes to an impact for the Charter on systems of local selfgovernment across Europe; whether Charter monitoring retains its legitimacy and significance for Council of Europe member states; and whether the Congress itself maintains its own position among the international institutions of Europe. These are among the questions to be addressed in the next two chapters.

  53. ‘Congress Presidency 2012–14: Activities and Achievements’, p. 7.

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6 Charter Impact: Influencing Local Self-Government in Europe

A INTRODUCTION In October 2010, the Congress of Local and Regional Authorities of Europe celebrated the twenty-fifth birthday of its child, the European Charter of Local Self-Government.1 And, in September 2013, the twenty-fifth anniversary of the Charter’s coming into force was similarly noted.2 These celebrations were rather muted in comparison with the bolder ceremonies at the Lisbon Conference held to mark the twentieth anniversary in 20053 but that restraint might be largely explained by the impact of the global financial crisis. The purpose of this chapter and Chapter 7 is to offer not a further celebration of the Charter but, more soberly, a more objective assessment of the significance of its contribution. In this chapter, the focus remains close to the declared purposes of the Charter and addresses the question of how the Charter has contributed to local autonomy in the Council of Europe member countries while, in Chapter 7, the emphasis will be on the Charter’s own qualities as an extraordinary treaty in international law and the ways in which it has contributed to the making of other international agreements. These include the events that led to the formulation in 2009, not of a Charter of Regional Self-Government, though there was once an ambition to achieve such a Charter, but of the Council of Europe’s Reference Framework on Regional Democracy and the aspiration for a World Charter of Local SelfGovernment. That chapter concludes with an assessment of the Charter’s input to relationships between the institutions of the Council of Europe.   1. See speeches to the Congress session by Ulrich Bohner, former Congress secretary general, at https://wcd.coe.int/ViewDoc.jsp?id=1694971&Site=COE and Professor Robert Hertzog, University of Strasbourg, at https://wcd.coe.int/ ViewDoc.jsp?id=1690037&Site=Congress&BackColorInternet=C3C3C3& BackColorIntranet=CACC9A&BackColorLogged=EFEA9C    2. See https://wcd.coe.int/ViewDoc.   3. See The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006).

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Looking first, in this chapter, to the Charter’s impact on local selfgovernment in the Council of Europe’s member states, it may be useful to divide these into two broad groups4 – with the United Kingdom considered separately at the end. In the first category may be placed the pre-1985 members of the Council of Europe minus Cyprus, Malta, and Turkey. These are the twenty states of western Europe which were members by 1985 and participated (or had the opportunity to participate) in the negotiation of the Charter’s text.5 Even though their Council of Europe membership dates back to before the Charter,6 Cyprus, Malta, and Turkey are better seen as members of a second group – those states of (mainly) central and eastern Europe which, for the most part, joined the Council of Europe after 1985 in the aftermath of the fall of the Berlin Wall. Within that group is an especially important subgroup of those states which sought and, in some cases, continue to seek membership of the European Union. Though, for most purposes, the United Kingdom is simply a member of the first group of western European states, it also has a number of special characteristics of its own. Separate treatment also permits discussion of the particularly interesting recent debate about the possibility of Charter incorporation in England and in Scotland. B THE WESTERN EUROPEAN STATES It is useful to be reminded what a small club of nations the Council of Europe was in the years prior to 1985. Now, in 2015, there are forty-seven member states. In 1985, however, there were only twenty and, from these, for present purposes, have to be deducted Cyprus, Malta, Turkey and the United Kingdom. As to the remainder, there are several reasons why Charter relevance and impact were never likely to loom large. Almost all were longestablished democracies with equally long-established traditions of democratic and self-governing institutions at the local level, though Spain and Portugal had only recently emerged from their periods of dictatorship. Germany is another special case, because, uniquely, it is the country which, though as West Germany, was a ‘founding father’ in 1985, was reunited with the German Democratic Republic in 1990 to become the modern state. Despite the differences in detail which may be identified within this group    4. Though not the two groupings adopted at the Barcelona conference of 1992, where the analysis simply separated those states that had signed and ratified from those that had not. See Conference on the European Charter of Local Self-Government (Council of Europe, 1993).    5. Four ‘western’ latecomers were San Marino (1988), Finland (1989), Andorra (1994) and Monaco (2004).    6. In Turkey’s case, from 1950.

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of states,7 they have in common their access to the drafting process. They had the opportunity – seized more actively by some than others – to mould the Charter’s terms to their own conditions.This ‘moulding’ was a process not so much of accommodating specific national characteristics but rather of the drafting of a treaty in very general terms and in terms, furthermore, that granted states a very broad discretion in the choice of articles to be applied to them. These phenomena were discussed in Chapter 2 and the conclusion reached was that Charter monitoring was never likely to impinge strongly on those states that, in their own view at least, were acting broadly in compliance with the Charter’s demands from the start.8 When the time came for ratifica­ tion and implementation, the assumption of compliance was maintained. In Austria, for instance, in the course of the procedure for parliamentary approval of the Charter, it ‘was emphasized that the Charter was completely in accordance with the prevailing federal constitutional provisions on local government’.9 Similarly, in Finland, at the time of ratification, it was concluded in the Parliament that ‘Finnish legislation contained no provisions that would conflict with the Charter, so no laws had to be amended’;10 and, in France, it has been stated that, because decentralisation in the country came before the making of the Charter, ‘the legal impact of the Charter has been marginal’.11 In Sweden,    7. From some points of view, of course, national differences between western European states and their local government systems have been regarded as matters far more important than mere details. There has, for instance, been a long-standing tendency to differentiate broadly between the ‘northern’ and ‘southern’ states of western Europe – but then also to acknowledge further distinctions, such as between the ‘Scandinavian’ countries and others of northern Europe. See, for example, Alan Norton, ‘Western European Local Government in Comparative Perspective’, in R. Batley and G. Stoker (eds), Local Government in Europe (Macmillan, 1991) p. 21.    8. Gérard Marcou made a similar point in 1993. See G. Marcou, ‘New Tendencies of Local Government Development in Europe’, in R.J. Bennett (ed.), Local Government in the New Europe (Belhaven, 1993) at p. 52. He went so far as to suggest, however, that ‘the Charter has been written in words that can be acceptable to each member state in respect of its existing local government, and no change in legislation is expected from the Charter itself. Indeed it has played no role in the discussions on local government reforms in EC member states.’ That has turned out to understate the Charter effect.    9. See A. Gamper, ‘Local Government in Austria’, in A.-M. Moreno (ed.), Local Government in the Member States of the European Union: A Comparative Legal Perspective (National Institute of Public Administration, Spain, 2012) (hereafter ‘lgmseu’), at p. 21.   10. See O. Mäenpää, ‘Local Government in Finland’, in lgmseu, at p. 187.   11. See R. Hertzog, ‘Local Government in France’, in lgmseu, at p. 210.

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[a]t the time of the approval of the [Charter], the view of the Swedish Government was that the 1977 Swedish Local Government Act was in line with the Charter and that no substantial changes therefore were needed in the Swedish legislation. The Charter and the Explanatory Report were added as an appendix in the travaux préparatoires. However, some adjustments were made in the 1991 Local Government Act as a result of the transformation of the Charter.12

In Belgium, it has been observed that ‘it is important to notice that both the Walloon and Flemish Regional legislators clearly referred to the Charter during the adoption of their respective municipal and provincial “organic” Acts.’13 And, in Ireland, where the Charter is not automatically part of the law, it has been acknowledged that many legislative provisions have been ‘designed to align the Irish system with the provisions of the Charter’.14 In Spain, the Charter ‘inspired the national basic legislation’.15 Thus, involvement at the drafting stage and general assumptions of prior compliance have not meant that the Charter’s terms have been irrelevant to legislative drafting in subsequent years, and they do not, of course, formally immunise states against monitoring criticism. But serious criticism was always unlikely to occur. Nor do the Charter characteristics of generality and flexibility apply, of course, only to this group of states but they were more likely to operate more strongly to their benefit. The Charter was constructed on the assumption that the 1985 signatories would be in compliance – an assumption that would certainly not hold for states newly emerging from Communist regimes after 1989. The recent experience of states enduring the current financial crisis helps to illustrate, even if in a rather counter-intuitive way, another characteristic of this group of ‘western’ states. In addition to their relative immunity to criticism on Charter grounds, they have a self-confidence enabling them to shrug off any such criticism. They are in a position to treat the views of the Congress (and the Council of Europe) as a relatively low-ranking contribution to an existing domestic debate. A Congress recommendation does not have the authority of, for instance, a decision of the European Court of Human Rights nor, in particular, the capacity of such decisions to affect subsequent decision-making in national courts. Decisions of the Strasbourg Court affect political decision-making via national courts in ways not shared by the Council of Europe’s political organs. Similarly, national governments of states within the European Union are obliged to defer to decisions by   12. See T. Madell, ‘Local Government in Sweden’, in lgmseu, at p. 641.   13. M. Bouvier, ‘Local Government in Belgium’, in lgmseu, at p. 49.   14. Y. Scannell, ‘Local Government in Ireland’, in lgmseu, at p. 317.   15. A.-M. Moreno, ‘Local Government in Spain’, in lgmseu, at p. 606.

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European Union organs in a way that cannot be matched by any deference demanded by the Congress to its strictures or recommendations on the quality of their local democracy. Paradoxically, perhaps, this relationship between the group of western states and the Congress is maintained just as strongly in the current era of financial crisis when potential breaches of the Charter’s principles become more likely – as evidenced by the recent Congress recommendations on Iceland,16 Italy,17 Portugal18 and Spain.19 A national government, under severe financial pressure and suffering criticism from local authorities and their associations at home, is unlikely to have much time for any additional slings and arrows from an agency representative of even more local authorities, whatever its claimed international credentials. Such govern­ ments will not necessarily ignore altogether the Charter-based criticism but they will be aware of the flexibility that the Charter’s language offers for a variety of different interpretations and, in the case of criticism of the ‘adequacy’ of financial resources of local authorities,20 they will be well aware of the defence on grounds of ‘national economic policy’. Above all, governments will have confidence in the prospect of a shared political sympathy round the table at the Committee of Ministers in Strasbourg. Even if the degree of financial crisis differs from state to state and the policy response of governments also varies, there will be a shared general sympathy for governments that are criticised but, in particular, a widely shared antipathy to hostile external criticism. It is in these conditions that the willingness of states to acknowledge the loss of the sovereign power to manage their internal financial and administrative affairs implied by their ratification of the Charter is most sorely tested. It is the duty of the Congress, in monitoring mode, to raise the questions of Charter compliance and to seek, at the very least, to keep local autonomy issues on domestic political agendas but, in the cold and stressed climate of financial crisis, Congress recommendations will be more robustly rebutted in defence of each state’s national interests.21

  16. Recommendation 283 (2010).   17. Recommendation 337 (2013).   18. Recommendation 323 (2013).   19. Recommendation 336 (2013).   20. See 58, 123 above.   21. As earlier noted, Portugal may be an exception here, in that it appears to have welcomed Congress involvement in seeking solutions to some of its local government problems. See 110 above.

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C THE STATES OF CENTRAL AND EASTERN EUROPE (PLUS CYPRUS, MALTA AND TURKEY)22 A recurring theme in this book has been the arrival, only a year after the Charter came into effect in 1988, of the fall of the Berlin Wall and the dramatic political reconstruction of central and eastern Europe which followed. In some ways, this might have been seen as a threat to the Charter’s viability across the newly defined Europe. A document created by and for a rather cosy western Europe23 of about twenty might be viewed as containing too alien a series of prescriptions for the newer Council of Europe membership of nearly fifty. This has manifestly not, however, been the case. Instead, the Council was re-energised with new missions on behalf of its proclaimed core values of human rights and democratic governance. The realm of the European Court of Human Rights rolled out eastwards and so, too, did the adoption of constitutions on the western model, affecting governance at all levels. This had two principal effects. The first was that, for the generality of states emerging from regimes in the style of the Soviet bloc, the Charter offered an immediate template on which, in relation to local self-government, national constitutions and legislation could be based. Genuine democracy and decentralisation had been lacking and, while territorial divisions might be retained through the transition, the Charter could provide the model on which reformed institutions and procedures might be based. In western Europe, the Charter’s provisions might have been regarded as too blunt an instrument to provide the basis for sophisticated reform, and the Charter was, in any event, created in their own image. In the states of central and eastern Europe, however, just such a blunt instrument was exactly what was required. Charter monitoring in those countries took on a very different character.24 Rinaldo Locatelli, former chief executive of the Congress has written: ‘With the Charter to sustain us, we dashed into Central and Eastern Europe as soon as the Berlin Wall came down’, and the Charter can be said to have ‘revolutionised local democracy in Eastern Europe’.25 These were states where the need, from 1989, for institutional reform was very clear.26   22. Belarus is the single exception from the list of European states admitted to Council of Europe membership.   23. Even if already including Cyprus and Turkey.   24. Congress Resolutions 223 (1991) and 233 (1992) are notable for their recognition of the impact of the admission of the new members of the Council of Europe and Congress.   25. See 50 Years of Local and Regional Democracy (Council of Europe, 2007).  26. A point compellingly made by G. Marcou, ‘New Tendencies of Local Government Development in Europe’, in R. J. Bennett (ed.), Local Government

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The Charter was deliberately deployed internally in the process of constitution-making and legislating for local self-government,27 often with technical assistance from the Council of Europe, and the Charter’s terms could very usefully be carried forward, despite their lack of refinement, into the monitoring stage in ways that would never have worked in relation to the more developed systems of local self-government in western Europe. One important factor was the receptive attitude extended to the Charter by governments. The need for institutional change was, in general, accepted, and the adoption of Charter standards, in constitutions, legislation and the monitoring process, was seen as a helpful intervention. Such acceptance has not, however, been instantly universal, and countries such as Moldova28 and Azerbaijan29 have been examples of states which, to judge by monitoring recommendations made, have found the full consequences of Charter ratification difficult to accept. As earlier discussed, particular problems arise for those countries in which adequate democracy at national level, a precondition of local democracy, has been hard to secure.30 At the other end of the scale, however, are those Council of Europe states – Poland, Hungary, Czech Republic, Slovakia, Slovenia, Romania, Bulgaria, Estonia, Latvia, Lithuania – which not only had rapidly to establish their credentials as post1989 democracies but, much more ambitiously, had to demonstrate that they were appropriate candidates for admission to the European Union. While the in the New Europe (Belhaven, 1993), at p. 52, referring, in particular, to Poland and Hungary.   27. The use of the Charter as a drafting model has been explicitly acknowledged in the case of Hungary (see Zoltán Szente, ‘Local Government in Hungary’, in lgmseu, at p. 289); Kosovo (see the Law on Local Self-Government 2008 .   .  .  preamble); Lithuania (see D. Šeaparniene and A. Lazauskiene, ‘Local Govern­ ment in Lithuania’ in lgmseu, at p. 393); Malta (see K. Aquilina and Isabelle Calleja, ‘Local Government in Malta’, in lgmseu, at p. 435); Romania where ‘many national provisions simply copy the articles of the Charter’ (see S. Tanasescu, ‘Local Government in Romania’ in lgmseu, at pp. 536–7); and Slovakia where ‘the full content of the Charter was adopted once national legislation was in line with all parts of the Charter’ (see M. Buček and J. Nemec, ‘Local Government in Slovakia’, in lgmseu, at p. 557). See also, on Latvia, E. Vanags, ‘Local Self-Government in Latvia’, in A. Coulson (ed.), Local Government in Eastern Europe: Establishing Democracy at the Grassroots (Edward Elgar, 1995), p. 128. See too A. Norton, ‘What East European Democracies Might Learn from the West’, ibid., p. 264.   28. Recommendation 179 (2005) on local democracy in Moldova was full of appeals to observe the spirit as well as the letter of the Charter.   29. See Recommendation 126 (2003).   30. See 141 above.

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primary criteria for European Union accession relate to the strength of applicants’ economies and their degree of compatibility with the acquis communautaire, standards of human rights protection and democracy (including local democracy) also play their part in this process. Pre-accession states are subject to a process of European Union monitoring and, in large measure, it is the Charter and Congress monitoring that have been used as the basis for the assessment of compliance with democratic standards of local self-government. This is a continuing process in relation to the state successors to the former Republic of Yugoslavia – Montenegro, Serbia, Macedonia, Bosnia and Herzegovina,31 and Kosovo – which seek to follow Slovenia and Croatia into the European Union.32 Accession reports are published annually33 and, though this deployment of Charter monitoring as an adjunct to European Union accession procedures has applied mainly to the post-1989 democracies, it also played its part in relation to Cyprus and Malta34 and continues to do so, though perhaps with declining effect, in relation to Turkey which remains a candidate country but with a more sceptical population. There is no doubt at all that, in ways unimaginable in 1985, a dominant aspect of Charter activity (especially in the period up to the European Union expansions to twenty-five in 2004, to twenty-seven in 2007 and to twenty-eight in 2013) has been the important role it has played in the enlargement process.35 As to implementation more broadly, though there has been no systematic research, it has certainly been a frequent claim of the Congress that any necessary implementation of constitutional change or other legislation or adjust­ ment of administrative practice has indeed been introduced.36 To an extent,  31. On Bosnia and Herzogovina, see M. Pejanovic, ‘Local Self-Government: A Must for Democracy’ in M. Fischer (ed.), Peace-Building and Civil Society in Bosnia Herzegovina: Ten Years after Dayton (Münster: Lit Verlag, 2006).   32. Iceland is also a candidate country.   33. See, for instance, the 2013 Report on Serbia at http://ec.europa.eu/enlargement/ pdf/key_documents/2013/package/brochures/serbia_2013.pdf and the 2013 Report on Turkey http://ec.europa.eu/enlargement/pdf/key_documents/2013/ package/brochures/turkey_2013.pdf in which, at pp 8–9, there was fulsome reference to the Charter and the Council of Europe.   34. See Recommendation 96 (2001) and Recommendation 122 (2002) respectively.  35. For further discussion of European Union developments and of Council of Europe participation in the European Union’s ‘Neighbourhood Policy’, see Chapter 7.   36. There can be no doubt that the countries of central and eastern Europe, which adopted new constitutions after 1989, relied heavily on the Charter for their provisions on local self-government (see also 149 above) but the same has been true, for instance, of the Italian and French constitutional reforms of 2001 and 2003 respectively.

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this may be reflected in the records of the Congress itself, the most obvious being where any state has amended its declaration under Article 12 of the Charter to expand its exposure to Charter obligations.37 Other signs of consequential legislative or administrative change38 are recorded in those countries where a second monitoring exercise or a fact-finding mission39 has been undertaken and the recommendations made on the earlier occasion reviewed.40 In some cases, especially in the former Yugoslavia but also in other parts of central and eastern Europe, it has been possible for Congress recommendations to be followed up directly by technical and other assistance (including legislative drafting) available from the Council of Europe’s Centre of Expertise for Local Government Reform and from the Congress’s own resources.41 As noted in Chapter 4, another indication of Charter impact has been the occasional instances of the Charter being invoked directly in legal proceedings in domestic courts.42 Beyond instances of the legal impact of the Charter, whether or not in consequence of the monitoring process, another way in which the Charter has had an impact is by its adoption into political discourse. This may be at an international and comparative level in forums on the role of local self-government, whether or not with the involvement of the Congress.43 Of greater significance may be the contribution the Charter can make to domestic debate on central–local relations. The United Kingdom position will be mentioned below but the point is of general application. For local authorities and their associations, the Charter provides a structure within which their arguments may be marshalled and specific claims made – against central governments made more vulnerable because formally bound by their Charter obligations. Other factors, such as the general political relationship between the parties, will doubtless continue to prevail overall. But, just as in some situations the leverage of recourse to a legal remedy can make its own contribution to that relationship, so, too, may recourse to the relatively independent authority of the Charter.   37. See 70 above.   38. Of course, cause and effect cannot always be discerned.   39. See 102 above.   40. This has, for instance, been the case for Turkey where successive monitoring recommendations and information reports have been recorded.   41. The Congress’s State of the Congress 2011 included (p. 14) a strong section on ‘Targeted assistance programmes to foster local democracy’.   42. See 85.   43. The Congress’s own events have included major conferences in Copenhagen and Barcelona. Occasionally, the Charter and its monitoring get exposure in scholarly journals. See, for example, the translation into Croat of the Congress report and recommendation on local and regional democracy in Croatia in (2007) 7 Hrvatska Javna Uprava, pp. 913–42.

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D THE UNITED KINGDOM How might one assess the impact of the Charter on the United Kingdom? Plainly it has not been one of those countries, just discussed, which participated in Charter-based negotiations in relation to its own accession to the European Union. It may, instead, be described as falling into that category of western European states where Charter impact has been more marginal. The United Kingdom was a relative latecomer to Charter ratification in 1997 – one of the last major western European states to join the club.44 As earlier noted,45 the United Kingdom had played an important role in the negotiations on the text of the Charter, even if only, at many points, to raise potential British difficulties under the Charter’s provisions and to propose amendments which might, by softening their terms, reduce the general impact of the Charter’s demands. It has also been noted that the United Kingdom joins some other states in conferring a low legal status on the Charter, in terms of its recognition by domestic courts.46 The first Congress monitoring of the United Kingdom in 1998 had little impact beyond confirming quite wellknown limitations on local authorities’ financial competences47 and became, of course, very dated.48 The second Congress monitoring during 2013–14 produced the report and recommendation discussed in Chapter 4.49 Though the British government (the Labour government prior to the general election of 2010) expressed a welcome for the Additional Protocol on Public Participation50 – it is, after all, a document that imposes duties rather than conferring additional rights on local authorities and, in any event, would have little overall impact on the British systems – the United Kingdom may   44. This was a delay apparently noted in Strasbourg with profound regret. See P. Blair, ‘Trends in Local Autonomy and Democracy: Reflections from a European Perspective’, in R. Batley and G. Stoker (eds), Local Government in Europe: Trends and Developments (Macmillan, 1991). Blair interpreted the United Kingdom’s position at that time as one reflecting the United Kingdom’s being out of step with the rest of western Europe. There, there was increasing local autonomy. In the United Kingdom, autonomy was under threat. He wrote (at p. 57) that, as a Council of Europe bureaucrat, ‘[T]he fact that the United Kingdom has . . . not found it possible to accede to the Charter has caused some sadness and perplexity in Strasbourg and raises the question whether the prevailing British conception of local government now diverges too far from the European norm.’   45. See Chapter 2.   46. See 91 above.   47. See 115 above.   48. See 115 above.   49. See 117 above.   50. The United Kingdom signed the protocol immediately but has not since ratified it.

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be presumed to be one of the leading sceptics in the discussions which might have led to a regional Charter.51 Until recently, there has been little public recourse to the local Charter in internal political debate, though shortly after accession to the Charter the British government invoked its status to reinforce arguments addressed to future devolved governments of Scotland to describe limitations they should recognise in the legislative competence of the Scottish Parliament in relation to local government.52 Mention of the devolved institutions in Scotland requires a short discursus on the broader significance of devolution in Charter terms. Though devolution in the United Kingdom is always described as ‘asymmetrical’, the arrange­ ments made by Acts of the Westminster Parliament53 for devolved institutions in Scotland, Northern Ireland and Wales create, for present purposes, very similar structures. Under an overarching British constitutional structure, which retains a continuing legislative supremacy for that Westminster Parliament, each of the territories has a legislature (whether formally a ‘Parliament’ in the case of Scotland or ‘Assembly’ in the case of Northern Ireland and Wales) with law-making powers and an executive responsible to it.54 The Westminster Parliament retains exclusive powers in relation to England. Thus, the first consequence, for Charter purposes, is that, in all three devolved territories, responsibility for local government legislation is now in the hands of the devolved legislatures,55 one consequence of which is that local government law (on structure, finance, internal operation, and powers) which, even prior to devolution, had, in some respects, permitted a degree of divergence between the systems,56 can now diverge autonomously in each territory. Of course, the Charter itself is a treaty binding on the United Kingdom as a whole and, in formal terms, it is the responsibility of the British government,   51. See 175 below.   52. See the White Paper, Scotland’s Parliament, Cm 3658 (1997), Chapter 6. For further discussion, see 155 below.   53. The Scotland Act 1998, the Northern Ireland Act 1998 and, for Wales, first the Government of Wales Act 1998, which created a form of ‘executive devolution’, and then the Government of Wales Act 2006, under which primary legislative powers were conferred, following a referendum, on the National Assembly for Wales.   54. An excellent general introduction to devolution and its institutions is to be found in A. W. Bradley, K. D. Ewing and C. J. S. Knight (eds), Constitutional and Administrative Law (16th ed., Pearson, 2014).   55. This was achieved in different ways, according to the style of devolution of competences. In Scotland, local government is devolved because it is not listed as ‘reserved’ in Schedule 5 to the Scotland Act 1998.   56. Especially between broadly common arrangements for England and Wales, on the one hand, and separate arrangements for each of Scotland and Northern Ireland.

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as the agent of the United Kingdom as the state party to the treaty, to ensure (internationally) overall compliance. On the other hand, the immediate responsibility for the general condition of local government law and, there­ fore, for ensuring its Charter compliance, falls to the devolved governments and legislatures. In this respect, the situation is broadly similar to that in which compliance with both European Union law and the echr has to be assured. In those cases, too, the treaty-making and, in the case of European Union law, the law-making power,57 are in the hands of the United Kingdom authorities but responsibility for ensuring compliance lies with the devolved authorities. In those two particular cases of international treaty obligation, however, the compliance process is strengthened by specific rules in the devolution Acts which provide, in terms, that the devolved legislatures and executives are formally incompetent to act in a manner that contravenes the United Kingdom’s European Union and echr obligations. Anything done in contravention of those rules is of no legal effect and may be challenged in the courts.58 That discipline does not, however, apply to the United Kingdom’s other treaty obligations. Those, too, have to operate across the country as a whole. They have, therefore, to be observed by all the relevant authorities, at both the United Kingdom and devolved levels. But a failure to comply cannot be restrained simply as a matter of a breach of the limits of legal competence. In a ‘dualist’ system, such as the United Kingdom,59 those other treaties do not operate automatically as a part of domestic law and do not directly bind public authorities in a way that can be enforced in the courts. The devolution Acts do, however, all contain provisions which would enable the British government, in the shape of the Secretary of State, to intervene to prevent legislative or executive action by the devolved authorities which is in breach of United Kingdom international treaty obligations.60 These powers have never been used (in relation to any treaty obligations at all) but it is not unimaginable that they could be used by a British government to try to ensure Charter compliance, if it were minded to do so. A second, and closely related, consequence of devolution is that, if the question of the direct ‘incorporation’ of the Charter into domestic law is raised, it inevitably produces new devolution questions of its own. Because local government is a devolved matter, the incorporation of the Charter would be within the competence of the devolved legislatures. The style of incorporation would be for them to decide. On the other hand, the retention of legislative competence by the Westminster Parliament means that, with the   57. But with some involvement of ministers from the devolved governments.   58. In the Scotland Act 1998, see section 29(2)(d) and Schedule 6.   59. See also Chapter 5.   60. In the Scotland Act 1998, see sections 35, 58.

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consent of the legislatures of any territory (beyond England) affected,61 the Charter could be incorporated more widely by that Parliament. There is a return to the question of Charter incorporation below.62 And a third general consequence of devolution has, of course, been that it has represented the United Kingdom’s biggest engagement with directly elected democratic regional government. It is not the first such engagement. There was the (ill-fated) experiment with devolved government in Northern Ireland between 1922 and 1972; there are the current arrangements for the government of Greater London;63 and there was an attempt to establish an elected regional assembly in the north-east region of England in 2004.64 Together with representatives from Greater London and English county councils and unitary authorities, the devolved legislatures have provided the membership of the British delegation to the Regional Chamber of the Congress. From a narrower local government and Charter perspective, however, devolution has provided the circumstances in which the devolved governments have become, in Charter terms, the relevant ‘central’ govern­ ment, against which local authorities need to assert their Charter rights.65 The devolved governments, rather than the British government, have become the potential problem for Charter compliance. As in other countries, the insertion of a strong regional level of government, which may itself be greedy for new political territory, has presented new opportunities for that political space to be captured at the expense of the local authorities. And it was, indeed, the threat, in 1997–98, that the new Scottish Parliament might be tempted to use its own powers, effective from May 1999, to reduce those of Scottish local government66 that prompted the British government to take steps against this. In their White Paper, Scotland’s Parliament,67 they foresaw that the devolution of powers to the Parliament might produce the undesirable consequence that the opportunity would be taken to accumulate a range of new functions at the level of the Scottish Executive.68 There was a  61. The requirement of consent derives not from law but from constitutional ‘convention’.   62. See p. 162.   63. See the Greater London Authority Act 1999 as amended.   64. See the Regional Assemblies (Preparations) Act 2003. The proposal failed to attract sufficient support in a referendum.   65. See 36 above.   66. See C. M. G. Himsworth, ‘New Devolution: New Dangers for Local Government?’ (1998) 24 Scottish Affairs, 74.   67. Cm 3658, Chapter 6.   68. ‘Scottish Executive’ was the language of the Scotland Act 1998 but, for many years, ‘Scottish Government’ was common parlance, and became the formal terminology under the Scotland Act 2012.

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specific reminder that the British government had just signed the European Charter and the principle of subsidiarity held good as much within Scotland as between Scotland and the United Kingdom. The Scottish people would be best served by the Scottish Parliament and Executive working closely with strong democratically elected local government. To assist the emergence of those conditions, the British government established a Commission on Local Government and the Scottish Parliament, and it was on the basis of the commission’s report, A Partnership for a Better Scotland, in 1999, that discussion of future relationships were initially discussed and a partnership framework between the Scottish Executive and the Convention of Scottish Local Authorities (cosla) was agreed in 2001, though there was never a covenant with the Parliament itself, as the commission had also recommended.69 The question of whether the Scottish government and Parliament have, in practice, recognsed the autonomy of Scottish local authorities is of some interest. Has devolution brought the damage to local authorities that some feared? Arguably, so.70 Looking beyond the specific case of the deployment by the British government of the Charter commitment to seek to induce good behaviour not on its own part but on the part of the Scottish government, the published instances of recourse to the Charter have, until quite recently, been few and far between. In the British political community (whether central or local) it is unlikely that, beyond the small number of councillors who have served as delegates to the Congress71 and the civil servants who have represented the United Kingdom on the cdlr, the profile of the Charter (or even knowledge of the Charter’s existence and purpose) looms very large. Completely unlike the echr, the Charter has never attracted media attention nor any recognition in popular discourse. Certainly the pubs and clubs do not resonate to the sound of Charter banter. Even in the general conduct of central–local relations, it has rarely been the case that Charter standards have been directly invoked, although the English Central–Local Concordat of December 2007 (signed by the Secretary of State for Communities and Local Government and the chairman of the Local Government Association) did   69. For fuller discussion, see C. M. G. Himsworth and C. M. O’Neill, Scotland’s Constitution: Law and Practice (3rd ed., Bloomsbury, 2015) Chapter 8. See also C. Himsworth, ‘Local Government in Scotland’, in A. McHarg and T. Mullen (eds), Public Law in Scotland (Avizandum, 2006).   70. See C. Himsworth, ‘Reassessing Local Autonomy under Devolution in Scotland’, in E. Cherrier and S. Guérard, La Régionalisation en Europe: Regards Croisés (Bruylant, 2014).   71. Among them, in recent years, Keith Whitmore achieved prominence as the president of the Congress between 2010 and 2012.

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mention the Charter’s preamble and its reference to the need for a ‘wide degree of autonomy’ for local authorities.72 There have, however, been significant exceptions to the practice of Charter silence. Even before the Charter was signed and ratified, there had been the report of the Commission for Local Democracy73 and also the report Rebuilding Trust of the House of Lords Select Committee on Relations between Central and Local Government,74 both of which recommended the signing of the Charter. The select committee had heard from the Department of the Environment to the effect that ‘while the question was under review, they considered local government to be a matter for national rather than inter­national decision, although they do agree “pretty well with the whole of the content” of the Charter.’75 The committee said: ‘Agreeing to the Charter hardly places onerous responsibilities on central government. Signing would neverthe­less be an important symbolic first step towards better relations with local government.’76 In the period after ratification, a body known as the Commission on Local Governance published a report, ‘Free to Differ: the Future for Local Democracy’, in June 200277 which was informed, at many points, by Charter principles. The commission took account of the detailed analysis of United Kingdom Charter compliance undertaken by Jeremy Smith.78 Then the London-based Local Government Information Unit (lgiu), a campaigning body operating on behalf of local authorities, organised a seminar in March 2003 on the role of the Charter and subsequently published Bringing the Charter Home.That pamphlet explained that the seminar had been held to mark the fifth anniversary of the United Kingdom’s ratification of the Charter.79   72. At the point when, in 2008, cosla briefly sought to persuade the Scottish government of the case for legislation on the status of local government, the Charter was invoked in support.   73. Taking Charge: The Rebirth of Local Democracy (1995). See especially, the section on ‘The Constitutional Status of Local Authorities’ in Chapter 6 on ‘A New Autonomy’. Professor Martin Loughlin had contributed a substantial paper in evidence to the commission.   74. (1995–96) HL Paper 97.   75. Ibid., paragraph 3.26.  76. Ibid.   77. See also the commission’s evidence to the House of Commons Select Committee on Transport, Local Government and the Regions at (2001–02) HC 981 – II.   78. See J. Smith, ‘The European Charter of Local Self-Government: Does the UK Government Comply?’ (2002) 5 JLGL, 90.   79. Contributions included a statement on the Charter from Ulrich Bohner, then deputy chief executive of the Congress, and Jeremy Smith, secretary general of the Council of European Municipalities and Regions.

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It summarised the Charter’s content and noted its general status and the fact that United Kingdom legislation gave no express recognition to the principle of local self-government. The lgiu urged such explicit recognition and also the adoption of references to the Charter in statutory guidance; they doubted whether current British audit arrangements, especially the integration of performance assessment, were Charter compatible; they were critical of the increased use of specific grants and of the low proportion (25 per cent) of local authority funding from locally determined resources and urged a more diverse and buoyant tax system. They also mentioned the recommendations in the United Kingdom monitoring report of 199880 and that there had not been a formal response to these from the government. In their conclusions, the lgiu urged that the implications of the Charter should be considered in the context of its recognition in British law, the current framework of review and inspection, the balance of funding between central and local government, and the consequences for local government of the development of a regional tier of government in England.81 There should be a ‘legitimate expectation’ that the government would adhere to Charter principles when it made proposals for reform. There has never been a very positive response from British governments to such proposals to raise the domestic profile of the Charter but the topic has recently been brought back on to the agenda through the investigatory activities of two different select committees of the House of Commons. During 2008–09, the Communities and Local Government Committee undertook a major inquiry into the relative power of central and local govern­ ment. The committee was responding to a perception that, although the government had policies intended ostensibly to empower local government, central direction and control had, in fact, increased. Their investigation was very wide-ranging (including visits to Denmark and Sweden) and so, too, were their recommendations. In The Balance of Power: Central and Local Government82 the committee proposed, inter alia, new powers for local government including a new power of general competence and changes in financial arrangements, practices and culture. But they also raised the question of a new constitutional settlement. In the absence of a written constitution, this could never be something as conceptually simple as ‘amending the constitution’ to give a new constitutional status to local government. This does not, however, altogether rule out what the committee called ‘constitutional legislation’,83 as examples of which they cited the   80. See 115 above.   81. But see the failed referendum in north-east England at 155 above.   82. (2008–09) HC 33.   83. Ibid., paragraph 124.

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legislation giving devolved powers to institutions in Scotland and Wales. Despite its formal subordination to the principle of parliamentary sovereignty and therefore its vulnerability to amendment, that legislation has acquired a perception of assured permanence. The committee had received much evidence on the Charter – for instance, Telford and Wrekin Council had observed in its written evidence that ‘the Inquiry has a major opportunity to “mainstream” the Charter and use it as a driver of change and a means to clarify and define the way forward in central/local relations’,84 highlighting in particular ‘the concept of subsidiarity’ that ‘should be at the heart of any debate about the nature of central/local relationships and the promotion of a new local democracy’.85 With these considerations in mind, the committee recommended that, despite many arguments to the contrary,86 the government should introduce ‘constitutional’ legislation that places the European Charter of Local Self-Government on a statutory basis.87 The (Labour) government of the time responded to this recommendation from the committee very cautiously: Government will continue to give close consideration to this issue to ensure that the role of local government in the development of any broader written constitution is examined as appropriate . . . [I]t would be necessary as part of the debate on a written constitution to consider what aspects of law and relationships between each part of the State and between the State and the citizen should be deemed constitutional. However, we accept that the principles as drafted in the consultation paper would need further development if they were to be adopted and we would aim to do that with stakeholders’ input. Once any principles are agreed, there would need to be a wide buy-in from both Parliament and local government.88

The Labour government left office in May 2010 but there was a return to these issues under the Conservative–Liberal Democrat coalition government, this time at the hand of the House of Commons Political and Constitutional Reform Committee. Though enabling much of the same ground to be covered in the area of relationships between central and local government, the focus of this committee’s investigation was much narrower than that of the Local Government and Communities Committee. The inquiry was called ‘Prospects for Codifying the Relationship between Central and Local Government’, and   84. Ibid., paragraph 131.   85. Ibid., paragraph 130.   86. See, for example, the evidence of Birmingham and Manchester City Councils referred to at (2008–09) HC 33, paragraph 133.   87. Recommendation 26 at (2008–09) HC 33, paragraph 133.   88. Cm 7801 (2010).

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the committee made clear that it was being conducted against the background of the Balance of Power report; the policies of the coalition government which had led to the passing of the Localism Act 2011, which includes a ‘general power of competence’; and, as possible bases for codification, first, the Central–Local Concordat of 200789 and, secondly, the Charter. The inquiry had the stated aim of exploring constitutional and practical issues around the possibility of codifying (or formally writing down) the principles and mechanics of the relationship between central and local government. After taking a substantial amount of evidence, the committee published, in early 2012, a ‘draft code’ and, following a further period of consultation, the committee published its report in January 2013. In the opening paragraphs of the report,90 the committee listed some of the more recent attempts to rebalance the relationship between central and local government91 but observed that published reports of such attempts ‘have, quite literally, sat on the shelf’.92 The committee claimed, however, that new factors were at play – ‘the Government’s commitment to localism, the desires of local government itself, and the debate on the future of Scotland’.93 The committee said it was optimistic about the issue being seriously debated. Their approach had been to offer a contribution to that debate by producing, first, the draft code containing the essential elements for a new relationship and then, secondly, a proposal for ensuring that the code had statutory status and furthermore that its status was enhanced by a degree of ‘entrenchment’. Thirdly, the committee suggested some ‘next steps’ towards the achievement of such a code. The notion of a ‘code’ in this context was potentially ambiguous. This was not a codification of all existing statutory provisions bearing upon the central–local relationship but instead a code (appended to the committee’s   89. The committee also noted the existence of the Scottish Concordat (see 156 above) and the (Welsh) Local Government Partnership Scheme 2008.   90. Prospects for Codifying the Relationship between Central and Local Government (2012–13) HC 656. In footnotes below, references to the ‘report’ are to Vol. I. In much of what follows, I draw heavily on a comment on the report published at [2013] Public Law 702–10.   91. The committee refer, in particular, to Rebuilding Trust, the report of the House of Lords Committee on Relations between Central and Local Government (1995–96) HL Paper 97; and The Balance of Power: Central and Local Government, the report of the House of Commons Communities and Local Government Committee (2008–09) HC 33.   92. Report, paragraph 1.   93. Ibid. The committee’s inquiry and report are confined to England because of the devolution of legislative competence for local government to the devolved authorities in Scotland, Wales and Northern Ireland.

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report) of ten articles and a preamble ‘which represent the broad principles that could govern the relationship between central and local government’.94 It was, on the other hand, rather perplexingly, ‘intended to replace the estimated 1293 duties imposed on local government today’95 – though without explanation of how that ‘replacement’ was to be achieved. Articles of the code asserted principles of local democracy and accountability and of local government funding while Article 1 was primarily concerned with the code’s status. We return to Article 1 below. But, in an early passage of their report, the committee discussed what they called the failure of ‘non-statutory options’ – by which they meant, in particular, the Central–Local Concordat which, though well intentioned, had fallen into disuse because it lacked statutory status and was simply an agreement between the Local Government Association and the Department for Communities and Local Government, rather than binding Whitehall as a whole. The committee insisted, therefore, that its proposed code be ‘enforced by statute and that the statute be entrenched’.96 It is here that the committee’s proposals come unstuck, with the notion of entrenchment being the principal snag. The committee addressed the tricky issues raised by the lack of a written constitution, parliamentary sovereignty, and executive domination of the legislative process but struggled to explain how entrenchment might be achieved.97 The content of a code may raise enough problems but these are nothing in comparison to the problems of giving it statutory and constitutional status. In this respect, the project to confer enforceable and entrenched rights on local authorities strongly resembles the project, eventually producing the Human Rights Act 1998, to confer such rights on individuals. The parallel is an important one. There have, of course, been subsequent developments98 but one early advantage of the process of ‘incorporation’ of the echr was that it could be taken from the shelf as a treaty whose text was settled and accepted as binding on the United Kingdom for nearly half a century. There is an equivalence here with the Charter. The advantages of ‘incorporating’ that   94. Report, paragraph 47. There is also an annex to the report, ‘What does the code mean for me?’, which seeks to explain to the ‘ordinary elector’ how the code would bring a ‘new buzz’ to local government.   95. A reference, in paragraph 47 of the report, to a written answer at HC Deb. 30 June 2011, column 58.   96. Report, paragraphs 111, 112, 118.   97. For a detailed analysis, see C. Himsworth, note 90 above.   98. Not all happy. See A UK Bill of Rights? The Choice Before Us, the report of the commission on a Bill of Rights (December 2012).

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treaty have been recognised in recent years, most prominently by the House of Commons Communities and Local Government Committee in 2009. As mentioned, that committee recommended that the government should introduce ‘constitutional’ legislation to place the Charter on a statutory basis.99 The 2013 report acknowledged the claims of the Charter for consideration in the debate100 but rejected its candidacy in favour of the draft code.101 The committee said that the Charter’s basic principles were sound and reflected in the code. They believed, however, that the ‘code better reflected the specifics of England’s situation, and the Government’s ongoing localism agenda’.102 There is, of course, a debate to be had about the Charter and the status it might be given in domestic law – the first stage of which is the question of whether to aim for justiciable rights for local authorities at all. But, once that stage is passed (as it had been by the Political and Constitutional Reform Committee) then the Charter’s claims deserve serious consideration. It has a settled content by which the British government is bound (as opposed to the unsettled and probably controversial content of the draft code), and the model of incorporation of the Human Rights Act is at least available as a serious starting point for discussion. That was not, however, the view of the coalition government. At an early opportunity to respond to the committee’s report, the deputy prime minister expressed some scepticism about the committee’s ‘constitutional blueprint’103 and the government’s formal response came in May 2013104 and repeated the same formula. The government’s approach was ‘necessarily incremental’ but was one which it believed would provide ‘a more effective means to deliver reforms rather than seeking to establish a more rigid, constitutional blueprint through a statutory code’ (paragraph 17). The government was ‘concerned that any new statutory code could also serve to support an increasingly litigious culture’ (paragraph 28). The government ‘would be interested in the substance of any draft Bill published by the Committee and reaction to it. Regardless of the merits of a statutory code, the Government does not believe   99. The Balance of Power: Central and Local Government (2008–09) HC 33, Recommendation 26, at paragraph 133. 100. A personal interest should be acknowledged here. I offered to the committee a couple of brief comments on the more technical aspects on the ‘incorporation’ of the Charter. See Ev w23 and Ev w 177 published in Vols III and IV respectively of the report. 101. Report, paragraphs 22–6. 102. Report, paragraph 26. 103. HC Liaison Committee, 5 February 2013. 104. See Cm 8623.

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that the case has been made for . . . treating legislation affecting local government differently from other statutes’ (paragraph 29). Thus, though claiming common ground in the pursuit of localism and decentralisation and acknowledging the need to reform ‘one of the most centralised countries in the western world’, and for ‘fundamental change in the relationship between citizens and the State’ (paragraph 32), there was no governmental sympathy for the committee’s project of codification. In the light of this response, there is much uncertainty as to the likely outcome of this debate. It has, however, become clear that, though the Charter may not have acquired a high profile among the population at large or even in the local government community, it has certainly achieved recognition as a candidate (though not the select committee’s preferred candidate) as a mechanism for securing some sort of assured status for local government in the overall constitutional order. The Charter’s existence does not answer the question of whether or not that status should be sought but it does appear that three phenomena are emerging prominently. The first has been the development of a renewed concern about the parlous state of local government in England, as evidenced by the parliamentary reports already mentioned. Such concerns are by no means new in British politics105 but this does seem to be a moment when a new head of steam is building. The second is that, while in the past, central–local relations were viewed, in the context of the United Kingdom’s ‘political constitution’,106 as an element in an essentially political relationship demanding a purely political reform, the British constitution has taken on an increasingly ‘juridified’107 character, and it has become much more acceptable to contemplate constitutionally defined and judicially enforceable reforms. In particular, the twin reforms of the early years of the Blair government – the devolution Acts of 1998 and the Human Rights Act 1998 – taken perhaps in combination with the establishment of the longer-standing accommodation of European Union law and the new United Kingdom Supreme Court have created a new environment in which a 105. There is a very substantial twentieth-century literature on British central–local relations. Central to it might be: W. I. Jennings, Principles of Local Government Law (University of London, 1931); H. Laski, I. Jennings, W. Robson (eds), A Century of Municipal Progress, 1835–1935 (Allen & Unwin, 1935); D. N. Chester, Central and Local Government (Macmillan, 1951); J. A. G. Griffith, Central Departments and Local Authorities (Allen & Unwin, 1966); M. Loughlin, Legality and Locality: The Role of Law in Central–Local Government Relations (Clarendon Press, 1996). 106. See J. A. G. Griffith, ‘The Political Constitution’ (1979) 42 MLR, 1. 107. ‘Juridification’ is the term adopted by Loughlin in his Legality and Locality, at note 105 above.

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constitutional reform of the central–local relationship can be contemplated. Former scepticism108 has, to an extent, been displaced, though nothing has yet, of course, removed the fundamental problems of doing constitutional reform in the absence of a written constitution and the continued operation of parliamentary supremacy which tends to undermine guarantees for the permanence of any institutional change.109 The third phenomenon is the specific role of the Human Rights Act 1998 in ‘incorporating’ the echr and the way in which it is seen as having squared the circle of parliamentary sovereignty. Acts of the Westminster Parliament may be declared by a court to be incompatible with the echr but may not be struck down as invalid. A comparison between the echr and the Charter can never be exact. And, in the case of the Charter, there is nothing resembling the Strasbourg Court or its contribution to the jurisprudence of the United Kingdom courts. But one feature of the echr’s incorporation remains significant. It had the advantage, already noted, of being an agreed text, and one already binding as an international treaty on the United Kingdom. It was available ‘off the peg’ and its incorporation could, therefore, be done without the need for an inevitably contested struggle to agree a new text. Even to ‘customise’ an international treaty to accommodate national peculiarities, but in such a way as to ensure compliance with the original, would be to engage in an inherently difficult exercise. The arguments for incorporation by adoption of the Charter text in preference to some other newly constructed text do not, however, in them­ selves address and overcome all those much wider arguments against the idea of making the ground rules of local autonomy justiciable in British courts. There is, first, an argument compellingly made by Bailey and Elliott110 that the raising of the constitutional status of local government can be successfully achieved only as a part of a virtuous circle of progress which also combines advances towards increasing the powers and financial independence of local 108. See, for example, M. Grant, ‘Central–Local Government Relations’, in J. Jowell and D. Oliver (eds), The Changing Constitution (2nd ed., Oxford University Press, 1989) pp. 255–6, and M. Loughlin (4th ed., 2000) p. 164. 109. An interesting recent arrival on the scene in the context of Scottish devolution has been the publication, in January 2015, of proposals for making the Scottish Parliament and the Scottish government ‘permanent’. In the ‘Draft Scotland Clauses 2015’, appended to Scotland in the United Kingdom: An enduring settlement (Cm 8990), the two institutions would simply be stated to be ‘recognised as a permanent part of the United Kingdom’s constitutional arrangements’. 110. S. Bailey and M. Elliott, ‘Taking Local Government Seriously’ (2009) 68 CLJ 436. See also I. Leigh, ‘Local Government and Political Constitutionalism’ [2014] Public Law 43.

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authorities. The two exercises must proceed in parallel. As long as progress towards those other objectives remains fragile, the attempt to attribute a formally higher status to local government will fail. With the determination of central government to maintain financial controls and to meddle directly in the affairs of local government, whether ostensibly in the interests of avoiding post-code lotteries in the differential delivery of services or simply because of an inability to let go and the insistence instead on treating local decisions as a matter of central policy-making, the conditions for a new ‘constitutional’ initiative will simply not be there. The tipping point which the devolved institutions in Scotland, Wales and Northern Ireland have reached as a matter of both political reality and constitutional perception will not be reached by local government. Secondly and more specifically, for the Charter to be more convincingly embraced within the British constitutional context, there would need to be a recommitment on the part of central government not only to a version of ‘localism’ which insists on decision-making at a local level but also to that version which asserts a commitment to strong and autonomous local authorities. So long as there is room instead for a ‘localism without local government’,111 there is an inevitable undermining of the most crucial of the Charter’s own commitments to a vision of local self-government based on democratically constituted decision-making bodies possessing a wide degree of autonomy. And thirdly, there has to be a conviction that entrusting the Charter’s terms to judicial interpretation and application would be constitutionally acceptable. Of course, that was a question relevant also to the incorporation of the echr but, for all the reasons already discussed,112 the Charter is a more difficult document and would not bring with it the assistance of the Strasbourg Court. There is not, furthermore, in the case of the Charter, the argument which was politically compelling in the case of the echr, that dirty washing was better laundered at home, rather than in an international forum. Occasional (or even five-yearly) monitoring by the Congress carries nothing like the potential embarrassment of recurring condemnation by the Strasbourg Court. There have been no developments in Scotland, Wales or Northern Ireland directly equivalent to those in England although, in Scotland in particular, there was much discussion of the status of local government in the context of the debate about independence and the referendum held on 18 September 2014. On the one hand, the Scottish National Party government, which favoured 111. The language of a minister in evidence to the inquiry of the House of Commons Communities and Local Government Committee into ‘Localism’. See Chapter 4 ‘Localism without Local Government?’, in (2010–12) HC 547. 112. See also Chapter 5.

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independence, issued proposals for a post-independence constitution for Scotland which would have included provision for a new status for local government. The government’s White Paper, Scotland’s Future, published on 26 November 2013 contained the following passage: Independence will also provide the platform to embed the role of Scottish local authorities in a written constitution. The Scottish Government will embed the position of local government in the constitutional platform and argue for Scotland’s written constitution, post-independence, to recognise the status and rights of elected local government. Such constitutional recognition is normal in developed democracies such as Germany, Denmark and Sweden, and this should also be the case in a modern, independent Scotland. A constitutional provision such as this would enable Scotland to fully implement an important aspect of the European Charter of Local Self-Government. That Charter commits states to applying basic rules guaranteeing political, administrative and financial independence of local authorities. In particular it provides that: ‘The principle of local self-government shall be recognised in domestic legislation, and, where practicable, in the constitution’. Given the lack of a written constitution, the UK – or a devolved Scotland within the UK – would find it impossible to provide this degree of constitutional recognition to local government. However, in the context of independence this new opportunity for local government will open up.113

On the other hand, those who opposed independence also took the position that the status of local government should be raised, even though in the context of continuing devolution arrangements. The local authority association, cosla, launched a Commission on Strengthening Local Democracy114 and the interim report of the Labour Party’s Devolution Commission argued for the reinvigoration of local democracy and for a constitutional guarantee of the powers for local government. The commission wrote: ‘The question for us is whether a form of formal, legal, entrenchment could do this, and if so how: this is an issue on which we welcome further views.’115 By the time of its final report in March 2014,116 the commission had further considered the 113. Scotland’s Future, 368 (footnote omitted). See also The Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (2014). 114. See Effective Democracy: Reconnecting with Communities (2014). 115. Powers for a Purpose – Strengthening Devolution (2013), paragraph 167. See also Sarah Boyack, ‘Double Devolution’, in Ambitions for Scotland (Scottish Fabians, 2013); and The Silent Crisis: Failure and Renewal in Local Democracy in Scotland (Jimmy Reid Foundation, 2013). 116. Powers for a Purpose – Strengthening Accountability and Empowering People (2014), Part 7: Double devolution: empowering local government, enhancing local democracy.

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question of a guarantee117 but eventually simply concluded: ‘We will work to establish a constitutional guarantee of powers for local government’. The SNP government has rejected attempts to seek a strengthened status for local government (for example, by incorporating the Charter) under the current devolution arrangements.118 Listing recent action taken, the government has claimed: ‘Through these actions the provisions of the European Charter are given renewed life and meaning and our proud tradition of local government is upheld. Indeed, because we recognise that local councils are an integral and essential element of the overall good governance of Scotland, we will argue upon independence for Scotland’s Constitution to guarantee the status and rights of elected local government.’119 E CONCLUSIONS A curiosity of the debates which have accompanied the question of codifying the central–local relationship in England and then the future of local govern­ ment in Scotland is that a new context for the discussion of the Charter has emerged in the United Kingdom. Until recently, the peculiarities of the British constitutional order combined with a scepticism about the juridifica­tion of political relationships and some robust hostility from central governments at the United Kingdom level prevented any serious Charter-based discourse but it may now be the case that windows of Charter opportunity will open up. In a broader European context, this development would serve to counter the effect of a previous British exceptionalism and to admit the United Kingdom as a more ‘normal’ member of the Council of Europe community of states. As we have seen, however, that normality is not one in which substantive Charter impact on European local self-government can be assured. In central and eastern Europe, Charter impact, though once high in the immediate aftermath of 1989 and in the pursuit by so many states of European Union accession, may well be on the decline. And, in western Europe, that impact, which has never been high, is already waning. Much may yet depend on broader aspects of Charter significance and of Charter futures to be discussed in the two final chapters.

117. Paragraphs 606–9. 118. See Consultation on the Community Empowerment (Scotland) Bill (November 2013), section 5.2 (Subsidiarity and local decision-making). 119. Ibid. Since the ‘No’ vote on 18 September 2014, the SNP government has established an inquiry into sources of revenue for local government to replace the existing council tax.

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7 Charter Impact: Beyond European Local Self-Government

A INTRODUCTION It was urged at the beginning of Chapter 6 that the influence of the European Charter of Local Self-Government was to be measured not only by reference to its impact on local self-government in Europe. Its influence should be assessed by reference to criteria broader than those instrumental consequences. There are other ways in which the Charter can be said to have placed its mark upon the world of international treaties and international organisations. First, it has proved to be, in the rules it lays down and the system for their enforcement it provides, a unique treaty in its own right. This will be elaborated in Section B below. Secondly, the Charter has inspired several related projects. While a ‘Charter of Regional Self-Government’ has proved to be unattainable, the Council of Europe has adopted a ‘Reference Framework on Regional Democracy’ to similar effect (Section C). The Charter has also contributed to a debate about a ‘World Charter of Local Self-Government’ and to the development of national and regional ‘Charters’ beyond Europe (Section D). Thirdly, it is a treaty whose emergence and record have played an important role in the development of institutional relationships within the Council of Europe (Section E).1 B A UNIQUE TREATY In the light of the treatment of the Charter so far, its remarkable features first mentioned in Chapter 1 will be more apparent. Three principal characteristics may be selected.

   1. This institutional effect has consequences too for relationships between the Council of Europe and the European Union. This is discussed in Chapter 8.

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A Treaty to Entrench Subsidiarity at the Substate Level In a document recently published by the European Union Committee of Regions,2 the claim is made that the European Union treaties themselves ‘indirectly recognise local and regional democracy’.3 That seems to be an extravagant claim. The ‘recognition’ those treaties provide is very, very indirect. On the other hand, when the claim is made on behalf of the Charter, and it is frequently made by the Congress, that it is the sole instrument of international law claiming to set standards for local democracy by conferring ‘rights’ on local authorities, that claim is wholly justifiable. It may be that the bolder claims to spread those standards worldwide4 or to generate a parallel Charter for regional authorities in Europe5 have met with less success and it may also be, therefore, that the local Charter marks some sort of high-water mark in this area. But its claims to success do, at the very least, deserve critical scrutiny. They have to be measured against what may be regarded as an inherently unpromising background. The Charter has been an instrument seeking to impose legal (if not always judicially enforceable) standards on relationships within states that were, and still are, generally viewed as essentially political – matters for determination in the exercise of its sovereignty within a state’s constitutional arrangements. The Charter has the impudence to attempt to intervene in those arrangements. No treaty commitments presume to guide states on how public power should be distributed in regional ways (whether on a deconcentrated model or a more democratic decentralised model);6 or, for instance, in their use of publicly owned economic enterprises; or by the deployment of quangos or other public organisations.7 If a state wishes to alter its internal governmental arrangements in any other respect, it is free, subject only to its own constitutional constraints, to do so.   2. Devolution in the European Union and the place for local and regional selfgovernment in EU policy making and delivery (2013).    3. Ibid. Paragraph 36, citing Article 10 of the Treaty on the European Union, Article 20 (2) of the Treaty on the Functioning of the European Union, and Article 40 of the European Union Charter of Fundamental Rights. The paragraph also asserts that ‘the EU sees local and regional democracy as one of the foundations of its own legitimacy’.    4. See 178 below.    5. See 172 below.    6. The Reference Framework for Regional Democracy of 2009 (see 175 below) does not insist on the adoption of regional governmental structures. Nor does it have treaty status.    7. Although European Union treaty rules do, of course, regulate to an extent the common-market and competition-law obligations of public authorities.

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Remarkably, against that background, however, the special character of local self-government is asserted and an autonomy for local authorities demanded. Admittedly, the Charter’s binding obligations arise, like those under human rights treaties, only with the consent of ratifying states but this does not challenge the unique character of the treaty’s intrusion. European states have accepted what amount to external constitutional restrictions on the disposition of their governmental arrangements. No other treaty presumes to require that. There is not, of course, any guarantee of the effective operation of the Charter in a hostile environment. At the outset, success was made quite improbable in the mid 1980s, given the diversity of the patterns of governance in the states of western Europe. Without a court and without any other assured means of strong international enforcement, it would not have been unreasonable to forecast that the Charter would remain on the shelf – a symbol of a merely formal commitment by states to some rather elegantly drafted principles? And how much greater were the difficulties to be confronted by the Charter with the eastward expansion of the Council of Europe from 1989? As things turned out, however, it may be that that expansion was the saviour of the Charter in its formative years, as we saw in Chapter 6. A Treaty with a Unique System of Enforcement One of the most significant features of the Charter is that, revealing very little on its face, it has nevertheless provided the basis for one of international law’s most interesting enforcement systems.8 We have seen that, institutionally embedded in the Council of Europe and the Congress, the Charter has attracted a system of national monitoring involving a unique combination of legal and political characteristics – a system that purports to have a real impact on the processes of local self-government it scrutinises, while not claiming the role of a court or ‘inspector’.9 While we have also seen that Congress monitoring was at its most productive in the phase of Europe’s enlargement eastwards and of multiple accessions to the European Union, and we have questioned its sustainability in the period since, it is a system that has been worthy of serious analysis. It has produced a new style of (modified) rights discourse.

  8. It may be that the Charter could also take its place on the interface between treaty law and ‘soft law’. See A. E. Boyle, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999) 48 ICLQ 901.   9. See 107 above.

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A Treaty of Practical Consequence Without implying that there is (the echr aside) a pecking order in these matters, there seems little doubt that the Charter has, in the years since 1985, maintained a significant profile among the Council of Europe’s treaties. Certainly, many others have achieved much less prominence. The Council has recently been engaged in a review of its treaties/conventions which has included a report drawn up by the secretary general in 2012.10 That report sought to divide the treaties (rather more than two hundred in all) into four categories: (1) the ‘flagship’ conventions ratified by numerous (more than forty) states and judged to be ‘key’; (2) conventions with fewer ratifications but nevertheless thought to be ‘key’; (3) other active conventions; and (4) inactive conventions. The Charter was included in the first category. In sharp contrast with many other Council of Europe treaties, the Charter has now been ratified by all member states. It is a treaty, furthermore, that has continued to command the explicit respect of the participating member states, as evidenced both by their support of the monitoring process and otherwise. Despite the problems earlier discussed,11 the monitoring of Charter implementation has been a process which, even if only in terms of information gathering and promulgation, has borne considerable fruits. The formal obligation to provide information imposed on states by Article 14 of the Charter, as augmented by the willing participation of representatives of central governments, local authorities and their associations, and others, has produced the basis for a rich data-gathering exercise. The data, in turn, provide a resource of hugely valuable potential for use both on a comparative basis across Europe and in the individual countries scrutinised. With the exception of Andorra, Monaco and San Marino, all member states have been monitored at least once.12 Monitoring reports and recommendations have engaged national governments in dialogue with the Congress. Representatives of states (whether ministers or officials) have consistently responded to the invitation to attend meetings in Strasbourg to discuss Congress recommendations. As discussed in Chapter 4, since 2010, there has been an increased commitment by the Congress to ‘following up’ the implementation of monitoring recommendations. Under the banner of ‘Working towards a strengthened   10. https://wcd.coe.int/ViewDoc.jsp?Ref=SG/Inf(2012)12&Language=lan English Ver=original&BackColorInternet= C3C3C3&BackColorIntranet=EDB021& BackColorLogged=F5D383   11. See Chapter 6.   12. Though the only monitoring report, so far, on Norway related only to regional democracy.

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political dialogue’, the Congress president prefaced The State of the Congress 2011 with his own recommitment (p. 3) to a ‘stronger and more permanent dialogue with national governments’, and this is an approach that has been sustained by the Congress in the period since then. C PROTECTING REGIONAL DEMOCRACY – BY CHARTER OR OTHERWISE In most countries in Europe, it is commonly the case that democratic institutions at the local level are joined, within the overall pattern of public administration, by other democratic institutions which may be broadly categorised as ‘regional’. There may also, of course, be other bodies that operate at the substate level but that have a lesser claim to be democratic in character. As opposed to the decentralised governance represented by elected bodies at the local or regional level, these are the manifestations of ‘deconcentrated’ government where the central government arranges for the discharge of some of its own functions through local or regional officials – such as, for instance, the governors of Turkish provinces, the prefects in France and Italy, or (until their abolition in 2011) the regional government offices in England. Democratic government at the regional level may take very different forms – ranging from the Länder in the federations of Austria and Germany, through the stronger forms of devolution represented by the autonomous communities of Spain and, in the United Kingdom, by the devolved institutions in Scotland, Wales and Northern Ireland, to other forms of elected regional government in, for instance, France and Italy. Sometimes larger cities may be characterised as regions, a feature recognised in the composition of the regional element (the Regional Chamber) of the member­ ship of the Congress.13 Though the Congress has a twin focus on both local and regional authorities and many of its structures and functions reflect that dual responsibility, the project to create and sustain the Charter of Local SelfGovernment was inevitably principally focused on the local level alone. As a result, the existence of government at the regional level receives only a rather shadowy and ambivalent treatment in the text of the Charter.14 On the one hand, regional government is identified as a part of the ‘problem’ of higherlevel government against which the autonomy of local self-government must be asserted and from which it must be protected. In Article 4(4), there is   13. See 11 above.   14. See also a cdlr document on ‘Regionalisation and its Effects on Local SelfGovernment’ (1998).

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specific reference to the danger of the powers of local authorities being undermined by other authorities, whether central or regional.15 In Article 8(2), the reference is to ‘higher-level’ authorities which supervise the powers they have delegated to local authorities.16 On the other hand, Article 13 of the Charter expressly contemplates that regional authorities may instead be the beneficiaries of Charter protections. State parties are invited to specify ‘the categories of local or regional authorities’ which they intend to include within the scope of the Charter’s substantive coverage. The specification for Charter purposes of all the territorial authorities identified in the French Constitution has, for example, meant that this includes the French regional councils. On the other hand, the United Kingdom’s non-specification of the Greater London Authority and the devolved institutions in Northern Ireland, Scotland and Wales means that none of those is Charter protected. Plainly, therefore, the Charter has never been regarded as having an equal application to local and regional authorities. On the other hand, the Congress has, for many years, had an ambition to place the two tiers on a similar footing by giving regional authorities a Charter of their own. In Recommendation 34 (1997) the Congress published the text of a draft European Charter of Regional Self-Government, the fruit of labours in the Congress pursuant to a request recorded in Resolution 8 (1994).17 In terms, the draft Charter repeated the subject matter of the local Charter, though with some variation to take account, for instance, of a right to regional participation in European and other international affairs. A specific obligation was to be imposed on regions to respect the spirit and the letter of the local Charter in their relations with local authorities. In contrast to the general welcome given to the local Charter project over a decade earlier, however, the proposed regional Charter received a much more hostile reaction from the Committee of Ministers of the Council of Europe, and it made no progress at that time. And it has been a hostility to a legally binding convention that has been maintained by the committee (or, at least, by a sufficient number of state representatives on the committee) to the present day.18 Since 1997, however, there have been two further stages to   15. See also Article 4(4) which refers to powers delegated by central or regional authorities.   16. In the draft additional protocol discussed above, Article 2 would have added specific protection against regions. See 80 above.   17. The resolution followed a ‘Conference on Regionalisation in Europe’ held in Geneva in September 1993.   18. An outline of events to 2007 is provided in Congress Recommendation 240 (2008) and in the Committee of Ministers’ response thereto [CM/Cong (2009) Recommendation 240, final 14 September 2009].

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report in the story of the production of a Council of Europe text on regional democracy. The first, up to 2008, was characterised by a series of commitments to the principle of regional democracy by conferences of ministers in 2002 (the ‘Helsinki Declaration’);19 in 2005 (the ‘Budapest Declaration’)20 and in 2007 (the ‘Valencia Declaration’).21 Secondly, however, the Congress returned to the fray in 2008 with a new draft European Charter of Regional Democracy.22 This drew on an expert report on the expansion of regionalisation across Europe; an account of the rationale of the original 1997 draft Charter and also of the doubts subsequently expressed by states about a binding document (including, for some, those deriving from the threat of separatist pressures to territorial integrity);23 and the possible alternative ways forward that had been considered by the Congress. The draft Charter of 2008 was a sophisticated and complex document. It seems certain, indeed, that its complexity was one factor that led to its downfall. After a long preamble, the draft was in four parts. Part I contained a list of what were called the ‘elements’ of regional democracy, by all of which all parties would be bound. These included principles such as citizen participation, subsidiarity, loyalty (that is, mutual loyalty between central government and regional authorities)24 and cohesion. Regional authorities were ‘entities between central government and local authorities’. Relation­ ships with local authorities were to be regulated according to the principles in the local Charter. There were also provisions in Part I as to the resources of regional authorities, their right to be consulted, their supervision and their legal protection. Part II of the draft Charter was the most complex because, though it required that all parties should be bound by all its articles, each article contained three different versions [(a), (b), (c)] from which parties would be required to select one – depending upon which ‘organisational form’ its regional democracy took. The strongest version of each substantive article (on functions, resources, principal bodies/governance, supervision,   19. CM (2002) 125.   20. MCL–14 (2005) 5.   21. MCL–15 (2007)5.   22. Appended to Recommendation 240 (2008). This followed Congress Resolution 244 ( 2007) which had acknowledged the barriers to progress to that point but had committed the Congress to restart discussions on a revised text. This was eventually adopted by the Congress as CG (15) 6 REP 6 May (2008) which became, in due course, the basis for the document appended to Recommendation 240 (2008).   23. The shift in the terminology of the title of the draft Charter from the language of ‘regional self-government’ to ‘regional democracy’ was deliberate.   24. A principle expressly incorporated into Article 120 of the Italian Constitution.

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and co-operation with other authorities) would attach to a ‘federal system’; a weaker form would attach to a ‘system of decentralised regional authorities’; and a yet weaker form would apply to a ‘local authority co-operation structure’. While the ‘federal system’ would, for instance, attract the (unsurprising) need for constitutional protection, at the other end of the scale, the local authority co-operation structure would attract substantially weaker demands (though still subject to the rules in Part I of the draft Charter) and, indeed, their fragility was demonstrated in draft Article 26 which stipulated that any indirect elections of regional assemblies from their constituent local authorities could be permitted to endure for only ten years. For those ten years, however, merely indirect elections would have been accepted as compatible with ‘regional democracy’. Part III of the draft Charter (where parties would have been required to sign up to at least twentyseven out of its forty-one paragraphs) contained further requirements in relation to, for instance, the scope of regional competences and many further aspects of the financing of regional authorities. The response of the Committee of Ministers to the draft Charter came in September 2009.25 They had referred the draft to the cdlr for consideration. In the cdlr’s report, it recalled all the work done not only by the Congress in its original draft Charter of 1997 but also that done under the auspices of the Committee of Ministers. In particular, however, the cdlr noted that, as early as 2004, standard-setting work in this field had been discontinued in favour of the general monitoring of developments, innovations and issues. And, with specific reference to the new draft Charter, the cdlr’s view was that it raised ‘the same fundamental question of whether member states wish to have convention-based standards in this field’.26 Following consultations, they concluded that there was ‘currently not a sufficient degree of shared purpose to envisage such a standard-setting activity being undertaken successfully’.27 With the general financial situation also in mind, they recommended that ‘any available resources should be used on activities likely to yield results and achieve practical benefits in terms of stronger and more effective democracies across all member states’.28 Instead the cdlr proposed that, in association with the Congress, a ‘Reference Framework for Regional Democracy’ might be put in place.29 The Committee of Ministers accepted this recommendation and, by the time of their own reply to the Congress, they were able to note with   25. CM/Cong (2009), Recommendation 240, final.   26. Ibid., Appendix paragraph 15.   27. Ibid., paragraph 16.   28. Ibid., paragraph 17.   29. Ibid., paragraph 20.

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satisfaction that a framework document would be available for consideration by the Conference of Ministers to be held in Utrecht in November 2009. And it was, indeed, this document which was adopted by ministers and has become the current basis for the evaluation of regional governance within the Council of Europe. It was one element of a broader ‘Utrecht Declaration on Good Local and Regional Governance in Turbulent Times: the Challenge of Change’ which also recorded the opening for signature of the new additional protocol (on Public Participation) to the local Charter.30 The reference framework describes itself as ‘a compilation and a synthesis of decisions by the Ministers and the Congress, serving as a reference point for any govern­ ment wishing to begin a process of regionalization or reform of its local and regional structures’, and also as a means of transcending the scope of Article 1331 of the European Charter of Local Self-Government in order to help governments strike the best possible balance in the apportionment of powers and responsibilities among different tiers of government. The document also reasserts the principles of subsidiarity, territorial cohesion and solidarity.32 The framework’s principal content is a series of extracts drawn from documents published by the Committee of Ministers (the ‘Helsinki principles’) and the Congress (the draft Charter appended to Recommendation 240 (2008)) as well as one provision (Article 4.6) from the local Charter itself. These extracted documents are assembled under four broad headings: regional architecture (within which are included regional structure, competences, relations with other tiers of government, links with central authorities and the protection of regional self-government); regional bodies and internal organisation; financing; and national and international relations. Inevitably, the document has a ‘cut and paste’ character to it and it, rather defensively, claims that ‘[g]enerally speaking, the texts brought together are wholly complementary. However, on certain issues, divergences exist between them. Where this is the case, it reflects the differing views of those having adopted the respective reference texts.’33 Following the adoption of the reference framework, the Congress issued Resolution 299 (2010) in which it welcomed the new document but, recalling the role of the local Charter as a particularly effective instrument for encourag­ ing local democracy and its recognition as of fundamental importance and a   30. See 81 above.   31. Article 13 authorises states to specify the authorities (local or regional) within the scope of the Charter. See 72 above.   32. Also referred to in the document as ‘federal loyalty’.   33. One small example of a difference of approach is in Articles 34 and 35 where the former seems to require ‘direct’ elections but the latter tolerates indirect elections.

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keystone of local democracy, called the reference framework a ‘basic political document’ and a ‘step towards a binding legal instrument’. Plainly there is a sense here, on the part of the Congress, of work being still in progress. In the meantime, however, the Congress invited its own members to pay the closest attention to the reference framework with a view to (a) promoting it and giving it maximum visibility and (b) using it when they carry out visits to Council of Europe member states on behalf of the Congress. In subsequent discussions within the Congress, there has been a commitment to the use of the reference framework in monitoring exercises and to the publication of an ‘explanatory brochure’ to make it better known.34 Already, monitoring reports are taking account of the reference framework. It will be interesting, in the years to come, to see whether, in the language of the Congress, which has plainly not abandoned the idea of a regional Charter, any further steps are taken beyond the reference framework towards a ‘binding legal instrument’. It should be noted that the European Union Committee of the Regions has, in a recent opinion on ‘Devolution’35 displayed a measure of fraternal support. The committee welcomed and supported the regional Charter initiative but expressed regret that it had been blocked by a number of members of the Council of Europe.36 There have, however, been two principal barriers to such progress. One has been the difficulty, in making the move from local to regional, of capturing a credible vision of regional autonomy or self-government capable of reduction to a set of core principles representative of the regional ideal. While there may be a set of essential characteristics associated with local autonomy which may quite readily (in the spirit of the local Charter) be asserted as an element necessary to the functioning of any democracy, whatever its other institutional features may be, no such convincing claim has yet been made on behalf of regional democracy. Not only may regional principles be inapplicable in smaller states but they may, quite evidently, be manifested in large states in many different forms – as graphically evidenced by the complications in the Congress draft Charter of 2008. When the local Charter was drafted in western Europe in the 1980s, it was possible to mould its terms round the actual practice of would-be parties. Flexibility could be achieved by permitting selective commitment by states but it was not necessary to propose, for instance, three different models of local democracy upon which to build the local Charter’s substantive provisions.   34. See Chamber of Regions activity report, 19 October 2010. CPR(19)1.   35. http://www.toad.cor.europa.eu/ViewDoc.aspx?doc=cdr%5ccivex-v%5c dossiers%5ccivex-v-034%5cEN%5cCDR2214-2012_00_00_TRA_AC_EN. doc&docid=2915334   36. Ibid., paragraph 18.

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The second problem has plainly been the sensitivity of states to intrusion into their constitutional and institutional affairs. This was a phenomenon that had to be handled very carefully in relation to the local Charter but has plainly raised insurmountable problems at the regional level. No case for ‘regional rights’ has been presented which has been remotely capable of achieving the same level of legitimacy and acceptance by states as the case for human rights, social rights or local autonomy rights. D LOCAL CHARTERS FOR THE WORLD OR, AT LEAST, SOME OTHER PARTS OF THE WORLD Another form that local Charter expansion has taken has been in the adoption of Charter ideas at the global level or in relation to other continents. Replacing an earlier version from 1985, a Worldwide Declaration of Local Self-Government was adopted in 1993 by the International Union of Local Authorities.37 In its preamble, this declaration inter alia welcomed the success of the European Charter and proclaimed a series of ‘principles of local self-government . . . to serve as a standard to which all nations should aspire in their efforts to achieve a more effective democratic process, thereby improving the social and economic well-being of their populations’. The structure of the European Charter is evident in the structure of the declaration, as, indeed, is much of the text. Subsequently the Congress itself became directly involved in a process insti­gated, once again, by the International Union of Local Authorities (iula) as a part of work undertaken by the United Nations Commission on Human Settlements (unchs Habitat) in the direction of a World Charter of Local Self-Government.38 The Congress first offered an opinion on an initial draft Charter in 1999 and then on a second draft in 2001. The draft was closely modelled on the European Charter and the worldwide declaration and was constructed in the form of a treaty inviting signature and ratification by states worldwide, including the possibility of subscribing to a minimum of thirty of its paragraphs, with at least twelve from a specified core. Authentic versions of the text were to be in Arabic, Chinese, English, French, Russian and Spanish.39   37. An organisation which, in 2004, joined with the World Federation of United Towns and Cities to become (the World Organisation of) United Cities and Local Governments.   38. The story is told in Appendix 1 to Opinion 17 (2002) on the second draft World Charter of Local Self-Government [CPL(9)3 (2002)]. See also ‘Towards a World Charter of Local Self-Government’: Joint consultation document unchs (1998).   39. See unchs Paper HS/C/PC.1/CRP.7 (2000) appended to Opinion 17 (above).

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The draft world Charter did not, however, make progress within the United Nations framework.40 Instead, a less ambitious project was launched to produce, eventually, the United Nations Human Settlements (habitat) programme’s ‘International Guidelines on Decentralisation and the Strength­ en­ing of Local Authorities’. The guidelines do not bind states, though states are urged to respect them. The content of the guidelines also presents a much weaker pattern of obligations than that of the European Charter or the draft world Charter. So, for instance, subsidiarity is proclaimed as a rationale for decentralisation. It is also stated, however, that, ‘[i]n many areas powers should be shared or exercised concurrently among different spheres of government. These should not lead to a diminution of local autonomy or prevent the development of local authorities as full partners . . . to develop to the point where they can be effective partners with other spheres of government and thus contribute fully in development processes.’41 Elsewhere there is some emphasis (under the rubric of ‘administrative relations between local authorities and other spheres of government’) on the need for constitutional and legislative recognition of local authorities and their powers; restrictions on supervision; and then on the need for sufficient financial resources – including the requirement that resources be commen­ surate with tasks and responsibilities. There is even a revival (retained from earlier drafts of the world Charter) of the requirement that any new transfer or delegation of tasks or responsibilities should be accompanied by ‘corresponding and adequate financial resources’ – a requirement dropped from the European Charter at the drafting stage.42 And the guidelines require that a ‘significant proportion’ of financial resources should derive from sources whose rate is to be determined by local authorities.43 Other provisions demand citizen participation in the policy-making process. At the subglobal level, there has been activity in some states in the direction of ‘declarations’ about local self-government – see, for example, the Australian Local Government Association’s ‘Declaration on the Role of Australian Local Government’ of 1997. And one regional development of interest has been the approval in 2009 of the Ibero-American Charter of Local Self-Government by the forum of Ibero-American local governments, with the ambition that it be adopted, in due course, by a summit of IberoAmerican heads of state and government. The Charter (which refers to the   40. For an outline account, see the Foreword to the ‘International Guidelines on Decentralisation and the Strengthening of Local Authorities’ (2007) below.   41. Guidelines B 3, 4.   42. See 61 above.  43. A strengthened form of Article 9(3) of the Charter was also sought in the Congress’s draft additional protocol. See 80 above.

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European Charter in its preamble)44 contains a list of obligations which draws (in a rather abbreviated form) on the European Charter. Because of the European membership of the organisation of three Ibero-American states (Andorra, Portugal and Spain) an interesting overlap of international obligations as to local autonomy may emerge. E THE CHARTER, THE CONGRESS AND THE COUNCIL OF EUROPE There is another, very different, way in which the Charter has made its presence felt. In addition to its inherent qualities as an international treaty and its impact upon the condition of local self-government in Europe, it has played a significant role in the life of the Congress, institutional relationships within the Council of Europe, and relationships between the Council of Europe and the European Union. Both in this chapter and at earlier points in the book, the lead role of the Congress (and its predecessors) in the development of the Charter has been emphasised. The political thrust of the Congress45 was vital for the creation of the idea of the Charter and during the drafting process. The Congress has discharged the monitoring role during the operational life of the Charter and has been primarily responsible for giving the Charter such international prominence as it has achieved. By 2005, it was, with abundant justification, stated that ‘the destinies of the Congress and the Charter are indissolubly linked’.46 At the same time, however, it has always to be remembered that the Congress exists only as an entity within the broader structure of, and only in a relationship with, the other Council of Europe institutions. It is constituted and given its powers not by the Statute of the Council of Europe itself but by virtue of a resolution of the Committee of Ministers.47 It is a subordinate body which enjoys a relationship to the Committee of Ministers strikingly reminiscent of the relationship of local authorities to central governments within states, with both its strengths and weaknesses. As former secretary general of the Congress, Rinaldo Locatelli, put it: ‘Vis-à-vis of [sic] Europe,   44. In his speech at the Congress celebration of the twenty-fifth anniversary of the Charter, former Secretary General Ulrich Bohner spoke of the inspiration provided by the European Charter for its Latin American counterpart. https:// wcd.coe.int/ViewDoc.jsp?id=1694971&Site=CM   45. At that time, the standing conference.   46. Francesco Merloni, then president of the Group of Independent Experts, in The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006), p. 47.   47. See 9 above.

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we raised the same right of self-government that local authorities invoke towards States.’48 He might, however, have also mentioned that, in contrast with local authorities themselves, the Congress has to perform its role without the benefit of a free-standing Charter to guarantee its autonomy! The Congress’s subordination was apparent in the process within the Council of Europe which led to its own creation. In the early 1950s, the local authority community had generated an enthusiasm for representation within the new Council of Europe structures and this had been supported by a resolution of the then consultative assembly in 195549 calling for the creation of a European conference of local elected representatives, to be convened each year from 1956.50 There had, however, been delays, due in part to ‘strong misgivings’ on the part of the Committee of Ministers51 and the first conference was convened only in January 1957, following which ‘the delegates parted with the satisfying sense of having set in motion a genuine process of co-operation, and decided to meet again the following year’.52 This was, however, to discount the wish of the Committee of Ministers which, pleading budgetary reasons, deemed the holding of a second conference in 1958 impossible despite the success of the first one. Behind these budgetary arguments, some participants discerned more political reasons linked with the caution of certain states over the furtherance of local self-government.53

And the struggle to achieve a solid basis for the conference continued until, in 1962, it was established as an ‘advisory and technical commission’ to meet, at that time, on a biennial basis.54 It was not until 1994 that the modern Congress was finally established. During this same period, of course, the Charter of Local Self-Government was being launched and this was a process which, just as much as the struggle for the separate institution of the conference and Congress, amply illustrated its subordination to stronger forces within the Council of Europe, At the Charter’s drafting stage the representatives of the member states rather than the Congress were clearly in the driving seat and settled the Charter’s final terms.55   48. 50 Years of Local and Regional Democracy in Europe (Council of Europe, 2007), p. 51.   49. Resolution 76 (1955).   50. This story is told in 50 Years of Local and Regional Democracy in Europe (Council of Europe, 2007), pp. 14–19.   51. Ibid., p. 15.   52. Ibid., p. 16.   53. Ibid., pp. 16–17.   54. Ibid., p. 18.   55. See 28 above.

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Later, it was the member states that suppressed the Congress’s proposed additional protocol to the Charter and gave effect to a proposal of their own.56 The Committee of Ministers suppressed the Congress’s ambition for a Charter of regional self-government.57 Formally, the Congress exercises its monitoring functions on behalf of, and under the authority of, the Committee of Ministers, and jealousies have inevitably arisen between these parties. The problem has focused on the parallel existence within the Council of Europe of two separate institutions asserting a concern for the condition of local and regional democracy in Europe. The Congress asserts its democratic base. The cdlr, on the other hand, relies on the authority and power which it derives from the intergovernmental Committee of Ministers. Moreover, these tensions were bound to be exacerbated, as existing conflicts between sectoral ambitions of the different organs of the Council of Europe are overlaid by the difficult consequences for the council’s budget flowing from the current financial crisis. The member states’ enthusiasm for an institution within the Council’s own apparatus whose purpose is to promote the interests of bodies with which, within their own boundaries, they are inevitably in political and financial dispute may dwindle. Tensions between the Committee of Ministers and the Congress were recently exposed in the (Chaves) report – Outlook to the Future – to the Conference of Ministers for Local and Regional Government held in Kiev in November 2011.58 The report contributed to an ongoing debate within the Council of Europe prompted largely by the global financial crisis about the reform of the Council’s institutions and their role. Though the report itself became more selective in its consideration of them, the four dimensions of the reform debate were identified in the report as: A The relations between intergovernmental sector and Congress of Local and Regional Authorities; B An agenda in common between the ministers responsible for local and regional issues and the Congress; C Monitoring of the European Charter of Local Self-Government; and D The evaluation of the Council of Europe’s works in the field of local and regional democracy. This agenda indicated how fundamentally the Council of Europe’s reform programme might affect the constitution and powers (including their monitoring role) of the Congress, and this appeared to be a project which the incoming United Kingdom chairmanship of the Committee of Ministers   56. See 81 above.   57. See 175 above.   58. MCL-17 (2011) 5.

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(from November 2011) was inclined enthusiastically to address. There was early talk of the ‘streamlining’ of the institutions with local and regional responsibilities. Secretary of State Eric Pickles spoke of the need for increased co-ordination and collaboration and better value for money in his address to the Congress session in March 2012.59 Since then, however, the darker clouds appear to have lifted and the most dangerous of the threats to the work (or, indeed, the existence) of the Congress have declined. Even so, the vulnerability of the Congress to the stronger powers of the intergovernmental section of the Council of Europe continues. And that is a relationship whose future is explored further, along with discussion of the relationship between the Council of Europe and the European Union, in Chapter 8.

  59. https://wcd.coe.int/ViewDoc.jsp?id=1922383

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8 General Conclusions

A INTRODUCTION In the last two chapters an assessment has been offered of the impact of the European Charter of Local Self-Government (‘the Charter’), both in terms of its instrumental contribution to local self-government across the continent and more generally. In this chapter, there is an opportunity to stand back a little from the detail of that discussion and to draw together some rather broader thoughts about the current standing of the Charter and its future. The focus on the Charter’s relationship to institutional developments in the Council of Europe is maintained but it is expanded to take into account the Council’s own relationship to the European Union and the ways in which the two institutions may develop, with consequences for the Charter. In undertaking this discussion, the image tentatively adopted will be that of the Charter as a form of institutional barometer in Europe. It could never be claimed that the Charter has, at any point, determined the broader course of events in Europe or that it will do so in the future but it does seem perfectly sensible to view its condition over the years as an indicator of the institutional climate of the continent as a whole. A primary use of barometers is, of course, in forecasting and there will be an attempt to peer into future possibilities at the end of the chapter but, before that, there will be a brief review of European weather conditions since the Charter’s origins shortly after World War II. Though the Charter as institutional barometer will, it is hoped, be a helpful image, its limitations have to be conceded. What is being suggested here is that an understanding of the role of the Charter may contribute to and may, at the same time, benefit from, a wider understanding of the treatybased relationships between states and their intergovernmental institutions which have characterised European developments in an era of great flux, reevaluation and consequent uncertainty. We are living, in post-World War II Europe, in conditions of great novelty in the history of international relations. Never before has a continent of states, while continuing to assert their independence and sovereign status, and distinctive characteristics, also sought to regulate their relationships in a complex web of treaty conditions, dominant

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within which are the regimes that constitute the European Union and the Council of Europe. The history of international relations cannot provide any clear guidance. We have no general understanding of how institutions created in the post-1945 period will eventually conduct themselves. The European Union is currently experiencing, especially in relation to its common currency, a profound existential crisis and may or may not endure in its present form and with its present membership. The Union’s weaker cousin is in a different position but, because we have no precedent situations to call in aid and no general pathology of modern international organisations, it is impossible to predict how far the two European organisations can expect to survive alongside each other. The relevance of all this to the Charter is that, as explained in Chapter 7, it is itself symbiotically related to the Congress and that the future of the Congress is, of course, intimately related to that of the Council of Europe as a whole. B ‘SET FAIR’ It has to be remembered that, although the Charter was formally promulgated only in 1985 and came into force in 1988, its period of gestation had been lengthy and that, for its origins, one has to look back to the period in the immediate aftermath of World War II. This was a time at which five conditions were combining in Europe – all conditions that favoured the birth of the Charter. Firstly, there was an overriding sense that the immediate past history of Europe (perhaps extending to include the whole period from 1914) should never again be repeated. The Auschwitz memorial continues to impose a powerful image outside the home of the Council of Europe in the Palais de l’Europe in Strasbourg. But, secondly, that immediate post-war period saw the birth of the European Movement – a commitment across the western Europe of the time to a vision of joint action to prevent the disasters of the previous twenty years, boosted by a similarly profound commitment to oppose the machinations of the Soviet bloc. Thirdly, this vision inevitably embraced a commitment to democracy, readily expanded to include local democracy. Fourthly, as evidenced by the United Nations General Assembly’s Universal Declaration of Human Rights of 1948 and the European Convention on Human Rights of 1950, there was a growing commitment to the perpetration of ‘rights’. And, fifthly, this was a period in which, institutionally, the pan-European actor was the new Council of Europe. Up to the 1950s the predecessors of the modern European Union dealt in coal and steel,1 with a cautious push towards the regulation of markets more    1. The European Coal and Steel Community which survived until 2002. There was also the European Atomic Energy Community.

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generally but with a geographical reach confined to the six original signatories to the Treaty of Rome (1948). The Charter, with its aspiration to broad European reach, its commitment to democracy and to rights, and its adoption by the only available institutional parent of the time – the Council of Europe – ticked all the boxes. It was a child of its times and a clear indicator of the particular climate they had created. C ‘CHANGE’ By the time the Charter actually came into effect in 1988, however, the upward rise of the institutional mercury was about to falter. For the most part, as we have seen, the new accommodation of a Europe east to the Urals and even to the Bering Strait brought a period of great opportunities for the Council of Europe, the Congress and the Charter. And those opportunities received another boost from the further aspiration of much of central and eastern Europe to join not only the Council of Europe (achieved by all, with the continuing exception of Belarus, by 2001)2 but also the European Union. Charter monitoring took on a significance undreamed of in the older western Europe. The ideals of democracy, rights and the rule of law seemed to attract new levels of enthusiasm as Europe pushed eastwards. On the other hand, there were Charter clouds building. First, the European Communities of six members had become, by the end of the first decade of the twenty-first century the European Union of twenty-seven.3 The European Union was, by that stage, by far the biggest institutional player in Europe. Its economic significance was immense but this had been joined by the substantial further ‘pillars’4 of police and judicial co-operation, and foreign policy and security.5 The European Union asserted new competences in relation to the environment.6 It had acquired its Charter of Fundamental Rights and a directly elected (from 1979) Parliament. Purely in terms of European territorial coverage, the Council of Europe still had the edge and, despite the EU Charter, a clear preeminence in the adjudication of human rights but, otherwise, the budgetary clout of the European Union was enormous and its political dominance was self-evident.    2. With the accession of Armenia and Azerbaijan – though with the successor states to the former Yugoslavia continuing to expand the list up to Montenegro’s accession in 2007.    3. With the accession of Croatia to follow in 2013.    4. From 1993, under the Treaty of Maastricht.    5. The ‘pillars’ were subsumed into the Union as a whole from 2009 under the Treaty of Lisbon.    6. Articles 191–3 of the Treaty on the Functioning of the European Union.

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But, secondly, the very fact of the expansion eastwards of the Council of Europe signalled the apparent demise of one of the post-war purposes of western Europe – the defence of territory and ideals against the Soviet threat. From 1989 it would become less obvious that a Europe which now embraced Russia and the other former Soviet-bloc states needed institutional protection. The Charter’s role during 1990 to 2008 reflected the ambiguities of the period. In some respects, it was a period in which the Charter blossomed. The Congress established its monitoring institutions and procedures and these were rolled out, to great effect, in the newly transformed central and eastern Europe. Also by 2008, however, new questions were to be asked about the Charter’s future. The task of certification of local democracy in the European Union applicant states was almost done, and the foundational commitment to the very idea of Charter monitoring was bound to arise. The Charter itself might not need to be jettisoned but surely the attractions to Council of Europe states of a treaty with such an intrusive process of monitoring might fade? Other treaties, the echr included, impose obligations which have enforcement procedures in the case of alleged breaches but they do not include the obligation to submit to visits by teams of Strasbourg-based scrutineers. As far as the category of European Union accession states was concerned, where the Council of Europe’s role had been to provide a helpful indicator of the state of local democracy for that limited purpose of securing accession, the job was almost complete. For the western European states, joined now by the European Union states of central and eastern Europe, the point of their vulnerability to monitoring had been lost. Monitoring might be overly reminiscent of the sort of supervision, or ‘special measures’, to which countries already found guilty of a succession of breaches of treaty obligations are subjected. D ‘STORMY’ But the global financial crisis of 2008, with other developments in its wake, has hugely magnified those questions. In all dimensions, the conditions for the earlier strengths of the Charter have been challenged. While none of the European institutions would openly concede that the post-war commitment to democracy, human rights and the rule of law has declined, it seems inevitable that, with the passing of that foundational era, the degree of collective support for their institutional representation has, indeed, receded. In some countries more than others, the enthusiasm for joint action, born of fear and hope, has drifted towards a degree of scepticism for the European ideal and its institutions7 – in many cases, joined also by a scepticism about    7. The Council of Europe’s own secretary general, Mr Thorbjørn Jagland, has

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the role of the state and government at all and, in some others, by a faltering respect for democratic standards. While the common market attractions of Europe may still attract a degree of loyalty, the casualties have been the institutionalised ideals of rights and democracy. Even the rights flagship, the European Court of Human Rights, has felt the strain. Swamped by business but losing state support, the court’s legitimacy is under threat. And, if the protection of the rights of individual human beings has come under new scrutiny by states, how much more the ‘rights’ of local authorities? Intimately related are the austere effects of the financial crisis. The essence of the Charter’s effectiveness lies in its monitoring for which the Congress is fully responsible but the Congress has joined other national and international public bodies in facing severe budgetary difficulties. The Council of Europe as a whole is under pressure and inevitably giving a very high priority to the work of the court. In these circumstances, the Congress is especially exposed. We have already noted that one consequence of those conditions has been the appeal made by the Congress to member states for voluntary contributions – especially in the form of staff secondments to help with ‘follow-up’ measures in the wake of monitoring reports and recommendations.8 Such measures have been admitted to be achievable only with assistance external to the Council of Europe. As well as producing budgetary problems, the financial crisis has contributed to broader institutional tensions. The crisis comes at a time when the role of the European Union vis-à-vis the Council of Europe has included the penetration of the Council of Europe’s heartland concerns of human rights and democracy. In a period of great fluidity, the indications are that two different (not wholly incompatible) Council of Europe futures are emerging. There is, on the one hand, the Council of Europe as ‘waiting room’ for the European Union, reflecting the general tendency towards EU consolidation across Europe. The numerical dominance of the Council of Europe has become much less pronounced. Even the Council’s membership superiority – forty-seven states to the European Union’s twentyeight – tends to dissolve if the lists of the states involved are more carefully scrutinised. The Union quickly adds to the core twenty-eight the three further members of the European Economic Area (Iceland, Norway and Switzerland) whose fortunes are so intimately tied to those of the Union. Then there are the states that continue to be involved in the European Union’s accession process. Macedonia, Montenegro, Serbia and Turkey are official candidate countries.9

spoken (19 March 2013) of a combined crisis of the economy, institutions and of citizen trust. See https://wcd.coe.int/ViewDoc.jsp?id=2051709&Site=COE   8. See 110–11 above.  9. Iceland, already mentioned, is also a candidate. And both Norway and Switzerland have been candidates in the past.

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Albania and Bosnia and Herzegovina are in the immediate wings. And all of Armenia, Azerbaijan, Georgia, Moldova and Ukraine are objects of the Union’s Eastern Partnership Policy10 which, as we have seen,11 involves satisfaction of local democracy criteria in which the Congress and the Charter play a role. If one ignores, for these purposes, the European microstates of Andorra, Liechtenstein, Monaco and San Marino12 which maintain less formal but nonetheless substantial relations with the European Union, only Russia, of the Council of Europe’s membership, remains wholly outside the European Union’s expanding fold. For institutions other than the court, these developments imply only a weak role for the Council of Europe in the provision of services in the Union’s accession arrangements. The direction of events is towards the assumption by the Union of the heartland concerns of the Council of Europe, and one has to assume a transfer to the Union’s institutions of functions currently associated with the parliamentary assembly and the Congress. On this assumption, the Charter’s future becomes enmeshed in the Union’s concerns, such as they are, with substate subsidiarity. There is, on the other hand, a second, quite different, future for the Council of Europe which can be envisaged. The very existence of Russia as a Council of Europe member state secures for the Council a role in Europe which can never expect to be paralleled by the European Union. It cannot sensibly be envisaged that Russia will ever apply to join the European Union. And Russia, it is turning out, is not alone. In the first place, in September 2013, the president of Armenia indicated a desire for membership of the Eurasian Economic Union13 – something that would be incompatible with an ever-closer relationship with the European Union – an event that was espec­ ially poignant for the Council of Europe because it coincided with Armenia’s chairmanship of the Committee of Ministers. But, though it might, therefore, have appeared damaging to the prospects of future partnership between the Council and the Union, it also highlighted the Council of Europe’s principal distinguishing feature – that it has a constituency beyond the domain of the European Union. But, secondly, there came a development at the end of 2013 of very much greater significance. In advance of a European Union summit in Vilnius in November 2013, at which it was expected that Ukraine (within the European Union Neighbourhood Policy) might sign a (political and free trade) association agreement with the Union, the Ukrainian president   10. But see below. Belarus is also involved, to an extent.   11. See 150.   12. Also the Vatican City.   13. Armenia acceded to the Union on 9 October 2014. It was formally established by treaty with effect from 1 January 2015.

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signalled an apparent intention instead to throw in his lot with Russia – a move that led to the revolutionary events in Ukraine in the early months of 2014 and the loss, in practical terms, of the Crimea to Russia before the end of March. The Congress (with twenty-two votes against and eight abstentions) joined other Council of Europe bodies in making a declaration severely critical of the Russian action.14 Since then, the Ukrainian civil war has intensified. On another front, the Congress was compelled to condemn the treaty of alliance and strategic partnership between the Russian Federation15 and Abkhazia, the breakaway region of Georgia. Meanwhile, for apparently completely different (but perhaps more deeply linked) reasons, the commitment of, on the one hand, Turkey and, on the other, Greece, to a coherent vision of Europe has come to be questioned. The very idea of Europe is under stress. These developments are acutely important for the Council of Europe not only because it has to endure the discomfort once again of (armed) hostilities between its own members but also because, though they mark a break in the commitment by ‘fringe’ states to the European Union project, they do, at the same time, create the potential for a different future for the Council of Europe. In respect of state membership, the Council of Europe is, and might yet remain, the organisation which, unlike its dominant cousin, will straddle the re-emerging two European ‘blocs’. And that may well be its salvation – along with its ‘ownership’ of the Court of Human Rights and perhaps the Venice Commission, at least in the short to medium term. Absent those specific contributions to human rights, to constitutional standards and, especially, to the holding of an enduring ring between west and east, the Council of Europe as an antechamber for admission to the greater European Union might otherwise be an insufficient claim to a right to survive. The overall survival of, and relations between, the European Union and the Council of Europe apart, more immediate questions for the Congress and the Charter relate to the extent to which responsibilities can, in times of financial stringency and political disaffection, continue to be shared in particular fields. There are, for instance, undoubted overlaps between the work of the Congress and the European Union’s Committee of the Regions. It is a relationship which is, to an extent, formally regulated, and meetings of   14. See: https://wcd.coe.int/ViewDoc.jsp?Ref=DECLARATION%202%20%2820 14%29&Language=lanEnglish&Ver=original&Site=COE&BackColor Internet=C3C3C3&BackColorIntranet=CACC9A&BackColorLogged= EFEA9C  15. https://wcd.coe.int/ViewDoc.jsp?Ref=CG-PR059%282014%29&Language =lanEnglish&Ver=original&Site=Congress& BackColorInternet=C3C3C3& BackColorIntranet=CACC9A&BackColorLogged=EFEA9C

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representatives of the two bodies are held on a regular basis on matters such as public ethics and corruption.16 The Committee of the Regions has also launched a European Union Charter for Multilevel Governance,17 which plainly touches on the Congress’s own core concerns. At a meeting on 9 December 2013, the Congress president asserted, perhaps betraying a little nervousness: ‘The European Charter of Local Self-Government and the Reference Framework on Regional Democracy can be an important basis for the drafting of the Charter on Multilevel Governance planned by the Committee of the Regions.’18 In the area of human rights implementation the Congress has explicitly invoked the co-operation and support of the European Union Agency for Fundamental Rights.19 Within the Council of Europe, we have seen the growing tensions between the Congress and the Committee of Ministers. The Congress has no monopoly of Council of Europe interest in local and regional democracy. Amid all these pressures, both within the Council of Europe structures and beyond, the response of the Congress has been the injection of renewed (and, some may say, frenetic) energies into the Charter and the Congress’s control of its implementation across Europe. The Congress has declared the Charter to be its central purpose and refocused its resources into the Charter project – in particular, by the new emphasis on a greater uniformity and intensity of monitoring.20 How sustainable this approach will be is a matter for some conjecture. Of course, the closely related project of the scrutiny of regional democracy under the reference framework21 is already an important dimension of Charter implementation. But there will always be distractions beyond these standard-setting projects and the recent record of the Congress reveals that some other non-Charter business has been allowed on to the agenda22 at the same time as monitoring has been pared back for financial reasons. In addition, however, there has been the increasing tendency within the Congress to redefine other issues as Charter related in order to reassert  16. See H. van Staa, 8 September 2011. https://wcd.coe.int/ViewDoc.jsp?id= 1827571&Site=COE   17. See the Committee’s White Paper on Multilevel Governance (2009) at http:// web.cor.europa.eu/epp/Ourviews/Documents/White%20Paper%20on%20 MLG.pdf. The Charter opened for signature in April 2014.  18. http://www.coe.int/t/congress/newssearch/default_en.asp?p=nwz&id=7327& lmLangue=1   19. See Congress Resolution 365 (2014) and 101 above.   20. See Chapter 4 above.   21. See Chapter 7 above.   22. Recent non-monitoring Congress publications have included Recommendation 325 (2012) on the changes underway in the Arab countries; Recommendation 327 (2012) on youth and democracy; and Recommendation 347 (2013) on migrants’ access to regional labour markets.

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the significance and dominance of the Charter project. The addition of human rights scrutiny has been one such example23 but there has been a wider attempt to claim the Charter’s primacy in all matters related to local governance. We have already seen that the Congress system of ‘political’ Charter monitoring has expanded Charter coverage beyond the scope of the text itself 24 but the same phenomenon is observable when the Congress asserts, for instance, the significance of the Charter for ‘sustainable urban innovation’.25 Some of this activity has a rather artificial and desperate feel to it – a feverish effort to expand the scope of the Charter’s scope and significance – but the most prominent aspect of the Charter empire recently expanded has been the ‘follow-up’, post-monitoring stages of the Congress’s work. The grounds for concern about combining the making of serious judgements on Charter compliance with subsequent collaboration with states thereafter have been noted26 but, in the context of boosting Charter prestige, the preference for practical effect over mere ‘theory’ can be understood.27 Alongside the follow-up initiative, the Congress ran its campaign for 100 per cent Charter coverage of the Council of Europe’s membership – which was achieved with San Marino’s ratification in 2013, despite occasional territorial gaps.28 But the Congress has indicated that it is not to rest on its laurels of 100 per cent state coverage. In the first place, it has started its new campaign for 100 per cent depth of commitment to the Charter,29 with the goal that all states expand their sign-up to all substantive articles of the Charter.30 And secondly, it seems   23. See 100 above.   24. See Chapter 5.   25. See A. Kiefer, ‘Innovation and the European Charter of Local Self-Government’, Münster, Germany, 10 July 2013 at https://wcd.coe.int/ViewDoc.jsp? id=20864 99&Site=COE&BackColorInternet=C3C3C3&BackColorIntranet= CACC9A &BackColorLogged=EFEA9C   26. See 111 above.   27. See, for example, Congress secretary general in an address to the Committee of Ministers on 3 April 2013: ‘We in the Congress want to be more useful to member states, not only in theory, but also in practice’. See https://wcd.coe.int/ ViewDoc.jsp?id=2052357&Site=COE   28. See 74–6 above.   29. See statement by the president of the Congress Chamber of Local Authorities on 30 Oct 2013: http://www.coe.int/t/congress/sessions/25/newssearch/default_ FR.asp?p=nwz&id=7269&lmLangue=1 ‘The Charter by definition is an “à la carte” instrument and . . . the next aim of the Congress would be to encourage all members to ratify all the Charter’s provisions through a process of political dialogue, post-monitoring and postelection recommendations.’   30. For the current picture of selective sign-up, see 69 above.

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that the Congress is to launch a new campaign to ‘update’ the text of the Charter itself. The immediate past president of the Congress posed the question whether the Charter needs revision and a further stage of evolution.31 The earlier attempts by the Congress to update the Charter by means of an amending or additional protocol were repulsed by the Committee of Ministers32 and it must be wondered whether any progress along those lines could be made.33 As pressures within the Council of Europe grow; as competition between the European bodies also grows; but as political enthusiasm for the post-war values of international monitoring wanes along with the necessary financial resources, it has to remain questionable whether these initiatives will succeed. All else apart, one has at least to wonder how far the politicians who constitute the Congress membership will be persuaded that the devotion of effort, to the exclusion of all else, to the relatively anodyne pursuit of Charter monitoring is justifiable. E THE FORECAST? Amid all the current problems and pressures within the Council of Europe; the unknown future of the Council’s relationships with the European Union and the countries of Europe beyond the Union, and the novelty of an era in Europe where all those conditions which gave birth to the Charter and have sustained it over nearly thirty years may have evaporated, who would make predictions? Europe and the world have had no equivalent experience of how, in the absence of the arrival of some terrible new conflagration, international institutions such as the Congress adapt or die. If forced to make some sort of a prediction, however, it has to seem likely that, if there are to be casualties, the Charter will be one of the more vulnerable targets. Whatever the future holds for the overall institutional configuration of the European continent, it is improbable that the Charter (despite all its apparent attractions for the progressive design of substate institutions) and its monitoring will celebrate a fiftieth anniversary.   31. See the opening statement by H. Van Staa at a joint seminar between the cemr and the Congress on 26 November 2013 at https://wcd.coe.int/ViewDoc.jsp?id =2133263&Site=COE.   32. See 81 above.   33. One possible line of expansion of the Charter’s scope might be in the direction of its embracing a more distinctive promotion of democratic involvement in local authorities, in response to declines in voting levels and public involvement (despite the Charter’s own Additional Protocol on Public Participation). See the concerns expressed by Jeremy Smith in The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006), pp. 27–32.

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Bibliography

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Local Government Information Unit, Taking Charge: The Rebirth of Local Democracy (1995). Loughlin, J., et al. (eds), The Oxford Handbook of Local and Regional Democracy in Europe (Oxford University Press, 2012). Loughlin, M., Legality and Locality: The Role of Law in Central–Local Government Relations (Clarendon Press, 1996) Loughlin, M., Gelfand, M. D. and Young, K. (eds), Half a Century of Municipal Decline 1935–1985 (George Allen & Unwin, 1985). McHarg, A. and Mullen, T. (eds), Public Law in Scotland (Avizandum, 2006). Moreno, A.-M. (ed.), Local Government in the Member States of the European Union: A Comparative Legal Perspective (National Institute of Public Administration, Spain, 2012). Multilevel Governance (Committee of the Regions, 2009). Panara, C. and Varney, M. R., Local Government in Europe: The Fourth Level in the EU Multi-Layered System of Governance (Routledge, 2013). Prospects for Codifying the Relationship between Central and Local Government (2012–13) HC 656. Rebuilding Trust (1995–6) HL Paper 97. Scotland in the United Kingdom: An enduring settlement (Cm 8990, 2014). Scotland’s Future (Scottish Government, 2013). Scotland’s Parliament (Cm 3658, 1997). Suksi, M., Sub-State Governance through Territorial Autonomy: A Comparative Study in Constitutional Law of Powers, Procedures and Institutions (Springer, 2011). Verstichel, A. et al. (eds) The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument? (Intersentia, 2008). Wassenberg, B., History of the Council of Europe (Council of Europe, 2013). Council of Europe Official Publications The European Charter of Local Self-Government – 20th Anniversary (Council of Europe, 2006). 50 Years of Local and Regional Democracy (Council of Europe, 2007). Proceedings of the Conference on the Occasion of the 10th Anniversary of the European Charter of Local Self-Government (Council of Europe, 1997). Report of the Conference on the Charter of Local Self-Government (Barcelona, January 1992) Studies and Texts No. 27 (Standing Conference of Local and Regional Authorities, 1993).

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Index

Aarhus Convention, 92, 95 Abkhazia, 75, 141, 190 additional protocol see European Charter of Local Self-Government, Additional Protocol administrative supervision see European Charter of Local Self-Government, administrative supervision Akrotiri, 75 Albania, 110, 112–14, 141, 189 Ancona Declaration, 45 Andorra, 71, 75, 104, 144, 171, 189 Armenia, 34, 66, 71, 75, 110, 112, 114, 141, 186, 189 assesori, 42 Association of French Mayors, 49–51 associations (local authority), 63–7 Auschwitz memorial, 185 Australian Local Government Association, 179 Austria, 71–2, 89, 104, 109, 112–13, 127, 145 autonomie locale, 6 autonomy (local), 5–6, 13, 19, 21–2, 25, 27, 29, 33, 57, 66, 68, 84, 125, 128, 135, 138–9, 147, 156–7, 170, 178, 181 Azerbaijan, 75, 110, 112, 114, 141, 149, 186, 189 Belarus, 76, 148, 186, 189 Belgium, 3–4, 8, 17, 29, 33, 41, 51, 71, 73, 87, 102, 104–5, 112, 127, 146 Blair, P., 23, 152

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Bohner, U., 143, 180 borrowing, 58–62 Bosnia and Herzegovina, 110, 112, 114, 138, 141, 150, 189 Bringing the Charter Home, 157 British Overseas Territories, 75 Budapest Declaration, 174 Bulgaria, 72, 112–14, 141, 149 burgemeester, 41 Canada, 131–2 capital cities, 137 capital investment, 58–62 Centres publics d’Aide Sociale, 73 Channel Islands, 75 Charter for Multilevel Governance, 191 Charter of Regional Democracy (draft), 3, 12, 143 Charter of Regional Self-Government (draft), 173 Chaves Report, 100, 109, 182 Commission on Strengthening Local Democracy, 166 Commissioner for Human Rights, 9 Committee of Ministers see Council of Europe, Committee of Ministers Committee of the Regions see European Union, Committee of the Regions Committee on Local Structures and Finance, 23–4 committees (local authority), 52–3, 64 compensation for expenses, 54 comuni politici, 73

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Conference of International NonGovernmental Organisations, 9 Conference of Local Authorities of Europe, 9, 22, 26 Conference (Standing) of Local and Regional Authorities of Europe, 9, 16, 28, 96 Congress of Local and Regional Authorities of Europe, 9–13 and passim bureau, 11, 100 chambers, 11 committees, 11 Current Affairs Committee, 11 Governance Committee, 11, 88 Group of Independent Experts, 77, 80, 86, 103, 106, 130 Monitoring Committee, 11, 88, 100–2 rapporteurs, 105–6 recommendations, 111–18 and passim Secretary General, 103 statutory forum, 11 Conseil Constitutionnel, 129 consultation (of local authorities) see European Charter of Local Self-Government, consultation contrôles de tutelle, 55–6 Convention of Scottish Local Authorities (COSLA), 156, 166 co-operation (by local authorities) 63–5 Council of Europe, 7–9 and passim Centre of Expertise for Local Government Reform, 151 Committee for Regional and Municipal Matters (CDRM), 28–9 Committee of Ministers, 8–9, 12, 76–7, 96, 98–9, 104, 108–11, 117, 130, 133, 135, 141, 147, 175–6, 180–2, 193 Committee on Regional Planning and Local Authorities, 22 Conference of Ministers, 12, 27, 29–30, 44, 82, 96, 109, 174, 182 Consultative Assembly, 9

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Democracy, Institution–building and Governance Department, 12 Directorate General of Democracy, 12 Directorate of Democratic Governance, Culture and Diversity, 12 European Committee on Local and Regional Democracy (CDLR), 12, 78–9, 156, 172, 175, 182 Parliamentary Assembly, 9–10, 16, 21, 27, 77–8, 99, 108 Secretariat, 69–70 Statute of, 8, 10, 180 treaties, 77 Treaty Office, 70, 75, 88 ‘waiting room’ for the European Union, 188 Council of European Municipalities (and Regions), 16–17, 83, 157 Court of Justice of the European Union, 95 Crimea, 75, 141, 190 Croatia, 32, 114, 150–1, 186 Cyprus, 29, 71–2, 75, 90, 104, 126, 141, 143, 148, 150 Czech Republic, 71, 90, 112, 140, 149 Daily Mail, 118 de Tocqueville, A., 25 Declaration of Principles of Local Autonomy (1970), 21–2 Delcamp, A., 94 Denmark, 8, 17, 29, 68, 73–4, 89, 110, 112–13 devolution (UK), 93, 153–6, 165–7 Dhekelia, 75 England, 47, 60, 73, 93, 114–16, 143, 153, 172 Equalisation (financial), 58–62 Estonia, 89, 109, 149 Eurasian Economic Union, 189 European Charter for Regional or Minority Languages, 8 European Charter of Local SelfGovernment

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Index adequate financial resources, 7, 58, 122–4, 132, 147 Additional Protocol (on the Right to Participate in the Affairs of a Local Authority), 8, 30, 40, 77, 81–3, 109, 113, 136, 152, 193 administrative supervision, 55–8, 80, 140 appropriate administrative structures and resources, 52–3 Article 1, 33 Article 2, 7, 33–6, 48, 69–70 Article 3, 7, 35–42, 56, 69–70, 82, 121, 127 Article 4, 7, 37, 42–50, 56, 69, 93, 121–2, 172 Article 5, 7, 50–2, 69, 140 Article 6, 7, 52–3, 122 Article 7, 7, 54–5, 69, 72, 122 Article 8, 7, 46, 48, 55–8, 70, 122, 127, 139 Article 9, 7, 35, 48, 50, 53, 56, 58–62, 70, 122–4, 138 Article 10, 7, 50, 63–7, 70, 140 Article 11, 7, 56, 67–8, 70, 85, 102, 137 Article 12, 30, 33, 68–72, 151 Article 13, 69, 72–4, 93 Article 14, 69, 95, 171 Article 15, 69 Article 16, 74–5 Article 17, 69 Article 18, 7 boundaries (protection), 7, 50–2 concept of local self-government, 36–42 consultation , 43, 45, 50–2, 58–62, 65, 80, 83,113, 116, 124 coverage (territorial), 1 declarations, 69–76 expenses (local elected representatives), 54–5 Explanatory Report, 5– 6, 23, 27–8, 30–69, 95, 97, 127, 146 financial resources (local authorities), 58–62

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199

follow-up, 109–11 gaps (in coverage), 74–6 human rights, 100, 135 impact of, 143–83 implementation and enforcement, 84–119, 170 incidental provisions, 68–76 institutional barometer (Charter as), 185–93 interpretation and application, 31, 120–42 legal protection (of local selfgovernment), 7, 67–8, 81 monitoring, 66–7, 76, 84, 94–120, 129–42, 152, 170 origins, 14–29, 31 overreach , 135–41 Part I, 7, 33, 68–9 Part II, 7, 68 Part III, 7, 68 preamble,4, 7, 30–3 principle of local self-government, 33–6 protocols, 12, 61, 76–83, 85 ratification, 1 reception, 85–91 reports (monitoring), 133–4 ‘reservations’, 70–6 right to associate (local authorities), 63–7 scope of local self-government, 42–50 substantial share of public affairs, 7, 36–9, 128 substantive provisions, 30–68 terminology, 5–6 text, 30–76 unique treaty, 168–72 European Charter of Municipal Liberties, 16–19 European Charter of Regional Democracy (draft), 174–5 European Charter of Regional SelfGovernment (draft), 173, 182 European Commission for Democracy through Law (Venice Commission), 9

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European Community, 43, 45, 77–8, 92; see also European Union European Communities Act 1972 (UK), 92 European Convention on Human Rights (ECHR), 1–2, 8, 20–1, 26, 77, 84–5, 92, 122, 125, 129, 131, 154, 156, 161, 164–5, 187 European Court of Human Rights, 8–9, 95, 105, 122, 125, 129, 131–2, 146, 148, 188, 190 European Cultural Convention, 8 European Movement, 185 European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities, 64, 117 European Social Charter, 8, 24, 26, 69, 97 European Union, 4, 32, 43, 45, 67, 77, 92, 106, 110, 126, 146–7, 154, 169, 183–93 accession 126, 149–50, 167 Agency for Fundamental Rights, 101, 191 Charter of Fundamental Rights, 169, 186 Committee of the Regions, 10, 177, 190–1 Court of Justice, 95 Eastern Partnership/Neighbourhood Policy, 150, 189 ‘neighbourhood policy’, 150 Treaty of Lisbon, 186 Treaty of Maastricht, 186 Treaty of Rome, 43, 186 Treaty on European Union, 45, 85, 169 Treaty on the Functioning of the European Union, 4, 43, 85, 169, 186 ‘fact sheets’, 102 Faroe Islands, 74 federal countries, 36, 60, 175 financial resources, 20; see also European Charter of Local

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Self-Government, adequate financial resources Finland, 51, 90, 112–13, 144–5 Flemish region, 102 Framework Convention for the Protection of National Minorities, 8 France, 3–4, 8, 17, 35, 38, 49, 51, 56, 65, 72–3, 87, 104, 126, 129, 138, 145, 150, 172 French language, 6–7, 52, 69, 88, 102 Frendo, H., 114 Gaelic, 88 Gemeinden, 73 Georgia, 71, 102, 110, 112, 114, 139, 141, 189–90 general competence, 47 German Association of Towns and Municipalities, 46 Germany, 8, 17, 29, 49, 73, 89, 105, 112, 114, 127, 144 Gibraltar, 75 giunte, 42 global financial crisis, 1–2, 13, 113, 146–7, 182, 187–8 Government of Wales Act 1998 (UK), 153 Government of Wales Act 2006 (UK), 153 grants, 59–61 Greater London, 11, 117–18, 155 Greece, 8, 29, 71, 106 Greenland, 74 Group of Independent Experts see Congress of Local and Regional Authorities of Europe, Group of Independent Experts HABITAT, 179 Harmegnies, L. (including Harmegnies Report), 23, 25, 27, 30, 34, 38, 46–9, 51–2, 57, 60, 65, 68 Helsinki Declaration, 174, 176 Herriot, E., 19 Hertzog, R., 16, 143

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Index human rights see European Convention on Human Rights; European Court of Human Rights; European Charter of Local Self-Government, human rights Human Rights Act 1998 (UK), 91–2, 164 Hungary, 112–14, 141, 149 Ibero-American Charter of Local Self-Government (draft), 179–80 Iceland, 8, 87, 104, 147, 188 International Guidelines on Decentralisation, 179 International Union of Local Authorities (IULA), 17, 178 interpretation see European Charter of Local Self-Government, interpretation and application Ireland, 8, 29, 105, 112, 146 Isle of Man, 75 Italy, 8, 17, 29, 34, 46, 112–13, 147, 150, 172, 174 Jagland, T., 187 Kazakhstan, 76 Keith-Lucas, B., 23 Kiefer, A., 100, 110, 136 kommuner, 73 Kordfelder, A., 116 Kosovo, 75, 141, 150 Kreise, 73 Kurdish, 114 Latvia, 70, 89, 102, 112, 114, 149 legal protection (of local selfgovernment) 21; see also European Charter of Local Self-Government, legal protection Liechtenstein, 71 Lithuania, 112, 137, 139, 149 local authority associations, 63–7, 107 Local Government Association, 156 Local Government Information Unit (LGIU), 157–8

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201

Localism Act 2011 (UK), 47, 116, 160 Locatelli, R., 23, 148, 180 London (City of), 73 Loughlin, M., 157 Luxembourg, 8, 17, 89 Macedonia (Former Yugoslavian Republic of), 105, 112–13, 139, 150, 188 Malta, 71, 105, 112–13, 126, 143, 148, 150 mayors, 40–2, 80 Merloni, F., 77, 86–7, 129, 180 Milhaud, E., 16–19 Moldova, 75, 110, 112, 114, 137, 139, 141, 149, 189 Monaco, 71, 76, 104, 144, 171, 189 monitoring see European Charter of Local Self-Government, monitoring Montenegro, 39, 70–1, 150, 186, 188 Nagorno Karabakh, 75, 141 National Assembly of Wales, 11, 93 Netherlands, 8, 17, 41, 42, 72–4, 91, 105, 112 Northern Ireland, 3, 11, 74–5, 93, 114, 117–18, 153, 172–3 Northern Ireland Act 1998 (UK), 115, 153 Norway, 8, 29, 35, 46, 68, 81, 171, 188 ombudsman, 55, 139 Parliamentary Assembly see Council of Europe, Parliamentary Assembly Pickles, E., 183 Poland, 35, 90, 126 Portugal, 29, 110, 112, 137, 139, 144, 147 Pridnestovian Moldavian Republic, 75 property (municipal), 80 Prospects for Codifying the Relationship between Central and Local Government, 160 Rebuilding Trust, 157, 160 Reference Framework for Regional

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202

THE EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT

Democracy, 101, 108, 130, 135, 144, 168–9, 175–7, 191 referendum, 50, 165 regional democracy (protecting), 172–8 rights (of local authorities), 5 Romania, 72, 90–1, 102, 112, 114, 141, 149 Russia, 75, 110, 126, 189–90 Saar, 17 San Marino, 1, 71, 76, 104, 144, 171, 189, 192 Scotland, 3, 11, 35, 46–7, 53, 60, 64–5, 73, 92, 93, 114, 116, 143, 153–6, 172–3 Scotland Act 1998 (UK), 153 Scotland Act 2012 (UK), 155 Scottish Parliament, 3, 11, 93 Seelisberg Declaration, 16 Serbia, 112–13, 150, 188 Slovakia, 70, 149 Slovenia, 109, 112, 149–50 Smith, E., 67 Smith, J., 81, 83, 115, 129, 157, 193 South Africa, 131 South Ossetia, 75, 141 Spain, 29, 36, 48, 71, 73, 91, 106, 112–13, 138, 145, 147 Standing Conference of Local and Regional Authorities of Europe, 9, 78, 96, 98 state of emergency, 20 Statute of the Council of Europe see Council of Europe, Statute Stoeckling, H. U., 114 Stokstad, S., 129 Stowell, Baroness, 118 ‘Strategy for Innovation and Good Governance at Local Level’ (2008), 135–6 subsidiarity, 45, 169–70, 176 Sweden, 8, 49, 60, 68, 73, 112, 145–6 Switzerland, 3–4, 17, 29, 38, 51, 55, 72–3, 87, 104, 110, 127, 188

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The Balance of Power: Central and Local Government, 158, 160, 162 Transnistria, 75, 141 Treaty of London, 8 Tskhinvali, 75 Tunisia, 79 Turkey, 8, 56, 66, 72, 102, 104, 112, 114, 126, 141, 143, 148, 150, 172, 188, 190 ‘Turkish Republic of Northern Cyprus’, 75, 141 tutelage, 56–7 Ukraine, 110, 112–14, 141, 189–90 United Kingdom, 2–4, 8, 11, 14–15, 28–9, 35–40, 47–51, 53–5, 57, 60–2, 64–5, 72–5, 81, 84–5, 87, 91–4, 111–12, 114–18, 127–8, 130, 151–67, 172 United Nations Commission on Human Settlements, 178–9 United States of America, 131 Universal Declaration of Human Rights, 185 Uss, A., 116 Utrecht Declaration, 176 Valencia Declaration, 174 van Staa, H., 109, 193 Vatican City, 76, 189 Versailles Charter, 15–19, 27 Voyvodina, 113 Wales, 3, 11, 60, 73, 93, 114, 116, 153, 172–3 Welsh language, 88 Whitmore, K., 74, 156 Woehrling, J.-M., 23, 86 World Charter of Local SelfGovernment (draft), 143, 169, 178–9 World Organisation of United Cities and Local Governments, 178 Worldwide Declaration of Local Self-Government, 178 Yugoslavia, 150, 186

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