Conference on “The rule of law as a practical concept”

Lancaster House, London, United Kingdom, 2 March 2012

Speech by President Keith Whitmore, Congress of Local and Regional Authorities, Council of Europe

Madam Chair,

Excellencies,
Ladies and Gentlemen,

First and foremost, I wish to say that I am grateful to the organisers of this conference – our partner the Venice Commission, and the UK Chairmanship of the Committee of Ministers – for this initiative and an opportunity to examine the practical aspects of the rule of law, which is a crucial and transversal concept underlying the democratic rule of our countries and the action of all levels of governance.

I wish to thank especially the Venice Commission for its excellent report and the tremendous work behind it, in the context where there is no clear consensus on the exact definition of the rule of law. While I am not a lawyer but an elected representative, I tend to agree with the Commission that the definition by Tom Bingham covers perhaps most appropriately the essential elements of this concept: (I quote) “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”. (end of quote)

The rule of law, along with democracy and human rights, is one of the three pillars of the Council of Europe, one of the key shared values on which a united, democratic Europe is being built. However, I would argue that, due to its transversal nature, this concept underlies the two others. Indeed, the rule of law is there to protect democratic principles and standards and ensure respect for human rights, and it is impossible to consolidate the two other pillars without the solid foundation of the rule of law.

The rule of law is inherent in democracy whatever the level of governance or public authorities – national or local – as this concept addresses the exercise of power as such and the relationship between the individual and the state, which is a starting point for building any democratic system.

For this concept to work in practice, it must permeate all levels of society. Much as democracy itself, the rule of law ensured and enforced at the national level will be fragile at best if it is not embedded at the grassroots, in our local and regional communities. This is where the Congress of Local and Regional Authorities comes into play, as the Council of Europe assembly of grassroots elected representatives working to ensure good democratic governance in our municipalities and regions.

The core mission of the Congress is to monitor the implementation of the European Charter of Local Self-Government, a key Council of Europe convention, a cornerstone treaty that can be compared to a Magna Carta for local communities. Since its entry into force in 1988, the Charter remains the only binding European legal instrument to lay down the principles of democratic local self-government. The Congress is the European body tasked with monitoring the Charter’s implementation in the 45 European countries that have ratified it to date.

The Charter sets out the core principles of local democracy, and their practical implementation serves to strengthen the rule of law at local level. Although the Charter does not mention the rule of law specifically – unlike the Statute of the Council of Europe or the European Convention on Human Rights – its principles, such as the principle of subsidiarity which governs the relationship between different levels of government, or the principle of legal recourse and access to courts by local authorities, serve to ensure and guarantee the practical implementation of the rule of law. Our monitoring of the Charter’s implementation since 1995 has produced a wealth of country-specific proposals, which has often been translated into new legislation, and sometimes even the reform of the legislative framework in the field of local democracy.

For some recent examples, I would refer you to the decisions voted by the Austrian parliament last June, as a direct implementation of three concrete Congress recommendations, following a national debate about federalism in that country which was triggered by our monitoring report. 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. Finally, we welcome the legislative proposal of the Russian President to return to direct elections of governors in Russia, which was one of our main recommendations in our recent monitoring of that country.

Complementary to monitoring, the Congress has been observing local and regional elections in member states, and recommends action to improve electoral frameworks and processes – which is, of course, a key component of the rule of law in a democratic system, a prerequisite for democracy and its most tangible exercise. Our election observation covers the whole legal framework for elections and the entire electoral process, to provide a comprehensive picture of the situation. In doing this, we work closely together with both the Venice Commission and the Parliamentary Assembly of the Council of Europe, our partners in the Council for Democratic Elections.

Monitoring and election observation have allowed us to obtain concrete achievements in the field of local democracy and to enter into more substantial and more targeted dialogue with authorities in the country concerned – in particular with presidents of constitutional courts of member states. The interpretation by constitutional courts of the Charter provisions and legislation in the light of the Charter create the case-law which is crucial for the rule of law at the grassroots.

The Congress is currently working to make sure that the Charter provisions are properly incorporated into domestic law and legal systems of member states – what we call the “reception of the Charter into domestic legislation”. We are convinced that this process is of fundamental importance for the good functioning of local democracy in European countries. Its direct applicability in member states is therefore crucial for a more effective rule of law at the grassroots. The case-law of constitutional courts with regard to the Charter’s implementation is the best proof of it. This is why last October, the Congress decided to draft guidelines on the current interpretation of the provisions of the Charter, for use by legislative bodies, monitoring bodies and constitutional courts.

The application of the principle of subsidiarity enshrined in the Charter is of particular importance in this regard. This principle provides for the transfer of competences and financial resources to local level, which entails greater direct responsibilities of local and regional authorities also in upholding the rule of law. With these competences, they are receiving an increasing number of obligations under European and international treaties – such as the European Social Charter, which guarantees access to social rights and public services such as housing, employment, education and health care; or the European Convention on Human Rights when it comes to freedom of association and assembly or action by municipal police. (Here I could also mention the European Convention for the prevention of torture).

This means that local and regional authorities are becoming direct players and stakeholders, on a par with national governments, in ensuring both the rule of law and the exercise of human rights in their communities – as much by fulfilling their direct duties as by promoting a ‘rule of law’ culture, setting an example in their work, working with local police, etc. This is why two years ago, the Congress decided to include the local and regional dimension of human rights in its activities, and is working to raise awareness of grassroots authorities of their responsibilities in this regard. Our decision to develop this dimension was dictated first and foremost by the transversal nature of the concept of the rule of law, to which a reference is made in one of the Congress resolutions and recommendations on the subject.

To strengthen the legal dimension of the rule of law at local level, the Congress has also been pursuing efforts to convince member states to lift their reservations to the Charter. This is indispensable for a unified European space of common standards for local democracy. For the United Kingdom in particular, for example, it would mean extending the application of the Charter to Northern Ireland – which remains the only territory within a member state that has ratified the Charter (and the UK did so in 1997) where its provisions are not enforced.

Ladies and Gentlemen,

I would like to conclude by stressing that the rule of law must be a living concept at all levels of society and governance, and that all tiers of government – European, national, regional and local – have a major role to play in its practical implementation. This is why I am pleased to see different Council of Europe bodies participating in this conference, and once again I wish to thank the organisers for bringing us all together for this very important discussion.

Thank you.