National Congress of the Executive Secretaries of Polish Local Government Units

Warsaw, 2 June 2016

Speaking notes for Mr Andreas Kiefer
Secretary General of the Congress of Local and Regional Authorities of the Council of Europe

Ladies and Gentlemen,

Before I speak to you about the European Charter of Local Self-Government, I would like to take this opportunity to compliment the Foundation in Support of Local Democracy on its leading role in promoting and shaping the development of self-government in Poland and also for the work you do in the other post-communist countries. Your training and capacity building activities set a great example of what can be done in supporting local self-government and in implementing the principles of the European Charter of Local Self-Government. The strong and independent role of the Foundation was and is still an important aspect for the development of local self-government in Poland.

I am glad that this conference is highlighting the important role of local executive secretaries, because efficient administration plays a central role in our local democracies. Local administrators are the linchpin of local democracy. They – you all here - have a vital role in solving problems, delivering efficient public services, communicating with citizens and stakeholders, and strengthening and supporting the role of the elected representatives who are accountable to the citizens for their own work but also for the administrative results and structures which are under their responsibility.

Today, I am very pleased to speak to you about the European Charter of Local Self-Government here in the capital of Poland, where – if I may say – it is admirable how much has been realized at the level of local self- government in such a short period of time – since Poland became one of the first countries to join the Council of Europe after the fall of the Berlin Wall.

In a short time-span Poland has achieved an impressive journey towards establishing local self-government. Already back in 1989, Poland began the process of re-establishing local self-government. This ambitious task has not always been an easy road for the government and I am glad that - with the help of experts from other member states and also from our Congress - the Polish authorities have managed to implement decentralization reforms guided by the standards of the European Charter of Local Self-Government.

This effective co-operation between Poland and the Council of Europe at different levels has been going on for many years and I believe that we have to pursue the exchange of know-how, expertise, best – and good - practices and of training programmes between local and regional authorities and the two main actors in the Council of Europe concerned with local democracy issues, namely the Congress as a political body and the Centre of expertise for local government reform, a unit in the intergovernmental secretariat, in order to achieve sustainable, strong  and independent local democracies throughout Europe.

All so-called “young democracies” have taken their inspiration from the European Charter of Local Self-Government in setting up local authorities with an accountable political leadership resulting from free and fair elections. Many of these countries have enshrined the basic principles of the Charter in their constitutions. This underlines the central role that the European Charter of Local Self-government has played and continues to play in the democratization process on our continent.

Local self-government is one of the cornerstones of our democracies and an undisputed feature of the European model of society. Genuine democracy and decentralisation are two sides of the same coin. Democracy involves giving a real voice and choice to the citizen and this requires a level of local democracy with accountable politicians who are supported by a strong administrative body whose competences corresponds to the authority’s responsibilities.

Local democracy is an essential element in a well-functioning democracy but it is only part of a whole. Municipalities, towns and cities need to maintain good relations with other levels of government, in the framework of what we are referring to as multilevel government. In view of current developments in Europe – new waves of migration, an increase in extremist violence - the existence of a strong local democracy is more important than ever for a cohesive society. Local democracy begins at the grassroots of society, at its closest level to the citizens, and it is able to adjust quickly to local requirements and to respond to new social developments and other needs.

An essential requirement of local democracy is that the powers of local governments are recognized by the higher levels of governments, who have a role to play in ensuring that local governments have the autonomy, independence and resources to take effective action to address the concerns, problems and needs of their citizens.

The recognition of local autonomy is not new. Over the centuries, European cities have fought for municipal liberties, for having a special say in a country’s policies, demands which were sometimes granted by the national power (emperor, king, duke) in the form of a charter or statute (Stadtrecht, Marktrecht) sometimes in giving rights of coinage [Muntrecht]). This culture of local autonomy has been growing within national politics throughout history, but was only codified 30 years ago in the European Charter of Local Self-Government.

Although the need for such a Charter was already a subject of discussion back in the 1950s – in the aftermath of World War II, during a unique period of recommitment to democracy and human rights – the Charter was not finalized until 1985. In that year the Charter was opened to signature as a convention for the member states of the Council of Europe. It came into force in 1988 and, after the fall of the Berlin Wall the following year, the scale and importance of the Charter accelerated. Many of the transformations and the reforms that were carried out in the new democracies were based on the Charter and led to the enshrinement of the Charter in the member states constitutions and laws.

Over the past 30 years the Charter - a unique international treaty - has contributed to strengthening the principles of local self-government and to contribute to the building of Europe on the principles of local democracy and decentralization of power, which is the best way to guarantee participation of citizens in public affairs and to maintain democratically legitimized control over the activities of the various bodies responsible for local governance.

The Charter remains a unique legal instrument to protect the autonomy and independence of territorial communities and constitutes the basis for further developments of grassroots democracy.

In 2013, when San Marino, signed and ratified the Charter, we reached another milestone – the completion of the Congress’ mission to enshrine the principles of local democracy in the constitutions or legal systems of all 47 member states of the Council of Europe.

Reception of the Charter in domestic law

Now that the Charter is ratified by all 47 Council of Europe member states and therefore is considered a key convention of the Council of Europe, we are turning our attention to how it is incorporated into the domestic legal systems of our member States. In its recent (2011) report on “The European Charter of Local Self-Government in domestic law”, the Congress proposes a package of measures to strengthen the reception of the Charter in the law of its member States. The Congress Monitoring Committee is tasked with examining the reception of the Charter during its monitoring visits. The Governance Committee is tasked with drafting guidelines on the current interpretation of the Charter, for use by monitoring, legislative and judicial bodies. We have already prepared such guidelines relating to consultation processes, adequate resources and conditions of office of local representatives and we are currently working on the adequate compensation of elected representatives. These guidelines should be taken into consideration by jurisdictions when they interpret the Charter.

Applicability of the Charter by jurisdictions 

However all these efforts will be in vain if the domestic jurisdictions do not take the Charter into account in their case-law and in this respect we have noticed a worrying trend in some countries, where the supreme courts have denied the applicability of the Charter on several occasions, despite the fact that their domestic law recognises the supremacy of international treaties. 

The constitutional courts of Italy and France stated very clearly, giving different reasons,that they were not in a position to take the Charter into consideration. The presidents of Constitutional courts of Cyprus and Finland say very openly that they usually do not take the Charter into consideration in their judgements, even when it is alleged by applicants, because its provisions are too vague. Too vague? Let me refer for instance to articles 7, 9 or 11 or 4 para.6 on consultation. Do they seem “vague” or imprecise to you? They do not to me!

I believe that the Charter was drafted quite intelligently. Its provisions leave a kind of margin of manoeuvre for authorities to apply it more easily and to adapt to each national system. However the substance is well defined and precise enough to be implemented and interpreted by courts in our member states.

Let me in this context quote the Secretary General of the Council of Europe, Thorbjørn Jagland, who identified a new kind of “legislative nationalism”. This means that some national parliaments begin to question the priority of international treaties, in concrete terms of the European Convention on Human Rights. There is a danger that the principle of “rule of law” is being newly interpreted as “rule by law” and in the worst case as “rule by my law”. This would, however, undermine the whole convention system on which our European model of society is built upon. 

I am tempted to say that the examples I mentioned indicate also a phenomenon we could call “judicial nationalism”. And I think Europe would be different in the future if it abandoned the values and principles which have guided this continent so successfully in the last decades.

But – fortunately - I have also a very relevant example of the opposite approach that I would like to share with you: The Supreme Court of Estonia delivered a Grand Chamber judgment in 2010 (of about 60 pages) and made a substantial interpretation of article 9 paragraph 1.

That is exactly what we should expect from national jurisdictions, and it is the way the domestic courts could contribute to make the Charter applied and local democracy improved. The provisions should be interpreted in order to get a better grasp of the text and to adjust it in the legal domestic system, to make it a tool in the domestic legal system. This is how, in my view, international treaties should be transposed and dealt in our countries, if we want to improve our democratic values.

A ratification of an international treaty is not a symbol, a signature. No, not only. It basically means commitment to give a treaty a reality in our internal system. That is our objective at the Congress: to make awareness raising and promoting the Charter to national and local authorities also through jurisdictions which also constitute the watchdogs of democratic values with the support of international treaties which offer a legal basis.

Monitoring of the Charter

There is no point in signing and ratifying the Charter if it is neither implemented nor taken into consideration by internal jurisdictions.  So in order to prevent the Charter ending up a dead letter the Congress monitors the application and implementation of the Charter in all 47 member states on a regular basis.

The Congress carries out country-by-country monitoring exercises to assess the application of the ratified articles by member states and the actual situations at the local and regional level, fact-finding missions to look into specific cases of potential violations of the Charter, and observation missions of local and regional elections.

Recurring issues

The monitoring work of the Congress shows that local-government in many member states of the Council of Europe is still fragile. In the course of its monitoring work, the Congress has identified a number of recurring issues in our member states with respect to the application of the Charter. For example, many local governments in the member states still lack adequate financial resources (Art. 9.1), clarity of powers and competences (Art. 4) and robust consultation processes with their national governments (Art. 4.6 & 9.6). In many member states we still find a lack of effective legal remedies for local authorities against the non-respect of their competencies or an excess of supervision and control (Art. 11).

Provisions relating to elected representatives and executive secretaries

The Charter also has provisions of direct interest to Executive Secretaries. Article 6, which calls for appropriate administrative structures and human and financial resources for the tasks of local authorities, calls for measures to ensure the recruitment of high quality staff with adequate training, remuneration and career prospects.

Similarly Article 7 stipulates appropriate conditions of office for elected representatives, with fair compensation of expenses incurred in the course of their duties, as well as compensation for loss of earnings and corresponding social welfare protection.

Monitoring report on Poland

In Poland, the Monitoring Committee of the Congress identified the following points of concern in their second monitoring report in 2015 (the first report dating from 2002). The rapporteurs observed that the autonomy of the local governments in Poland is increasingly being eroded by central government regulation. Over the years, the competences delegated to the local and regional authorities have increased, but adequate funding to carry out these tasks is lacking.

The Congress also points out that local and regional government bodies with higher revenue find the equalization system burdensome at this time of economic stagnation, as contributions are calculated on revenues earned in an earlier growth period.

Lastly, the Congress found that the division of competences between local and regional authorities with regard to spatial planning was lacking in clarity and that co-ordination was suffering as a result. In the report, the Congress recommended that the Polish government be encouraged to debate and implement the different measures targeting a stronger decentralization and to allow local and regional finances more autonomy.

I am glad to see that the Foundation of Supporting Local Democracy is contributing to this debate and today touches upon the importance of well-trained executive secretaries, with sufficient basic understanding and skills to deliver local governance effectively. We recognise that the Foundation undertakes many initiatives to achieve stronger decentralization and make local self-government aware in the strong network they have built up.

Post-monitoring dialogue

In the Congress, we see our task as not only keeping track of the application of the Charter but also providing assistance to member states in the implementation of the recommendations to national governments adopted by the Congress. In this process, which we refer to as post-monitoring dialogue, and which forms part of our political interaction with national governments, we review together the recommendations and see how and by when they can be implemented, making practical proposals and agreeing on the timeline.

The governments concerned undertake to implement the recommendations in accordance with arrangements set out in roadmaps drawn up jointly with the Congress. This entails a kind of teamwork which takes account of the countries’ specific features, political contexts and institutional and constitutional systems

Let me be clear:  Our post-monitoring work is not to act as a kind of policeman of the implementation of the recommendations, but is designed to continue the dialogue and to accompany the authorities in their efforts to improve the situation. We regard our recommendations as friendly advice for action, and our post-monitoring as friendly support to achieve successful reforms.

I am glad to report that many governments are interested in continuing this dialogue and signing roadmaps on the implementation of our recommendations in order to help us all to move towards a higher level of democracy, firmly based on the European Charter of Local Self-Government.

The Congress works to assist this consolidation and development of territorial democracy in a ‘virtuous circle’ of monitoring, post-monitoring and co-operation activities. I would like to address some of these activities and developments in the member state countries (represented at this congress):

Ukraine

The very first roadmap for the implementation of the Congress recommendations was jointly drawn up by the Congress and the government of Ukraine. The Congress worked in close co-operation with the Ukrainian ministries responsible for decentralization and the constitutional committee of the Verhovna Rada set up to prepare the reform of the constitution and the law on decentralization which should be voted in the next weeks.

Last month, on 18 and 19 May 2016, the Congress organized a workshop ‘Mayors, leader for change, in Kyiv. 20 Mayors from four regions of Ukraine shared their experiences as local leaders and discussed their role in the implementation of the decentralization reform. A similar workshop was held last December in Yerevan, Armenia. The aim of these workshops is to discuss elected leaders’ views of how local democracy works in the participating country and what can be improved on the local level. The Congress implements co-operation activities bilaterally and in the EU-CoE Programmatic Co-operation Framework for local politicians in the six countries of the EU-neighbourhood policy.

Armenia and the Republic of Moldova

The Congress has also drawn up roadmaps for implementing the Congress recommendations for Armenia and the Republic of Moldova, after fruitful and intensive post-monitoring dialogue concerning the decentralization process and measures to strengthen local democracy and governance.

The roadmaps that are set out by the Congress focus on the issues of the devolution of powers, and the division of tasks and responsibilities between the central government and the local government. Other activities aim at increasing the local elected representative’s capacities as drivers for change, promoting dialogue with central and local authorities. Two more roadmaps are about to be signed by Armenia and the Republic of Moldova later this year.

Albania

In Albania, the Congress is assisting the Albanian government in setting up institutionalized consultation of local and regional authorities in order to strengthen the on-going decentralization process and as well supporting the process towards a sustainable pluralistic and unified platform of dialogue between all local authorities, associations and stakeholders.

The next Congress’ monitoring visit on local and regional democracy is scheduled for 2017.

Cyprus

From 5 to 7 April 2016, a delegation from the Congress visited the Republic of Cyprus for a monitoring visit and the report is currently under preparation.

Human Rights at local and regional level

Although the main aim of the Congress is to promote and support local and regional democracy through decentralization, good governance and respect of the principle of subsidiarity and has its tools of through monitoring of the European Charter of Local Self- Government, of the  post-monitoring dialogue and of observing local and regional elections in the 47 member states of the Council of Europe, it is also important that political leaders and executive secretaries of local authorities are aware of human rights and take them into account during their work and policies.

Local governance, democracy and human rights are interrelated. No human rights can be achieved without democracy and a democracy without human rights is no ‘real’ democracy. At the same, as I said before, local democracy is an essential element of a good functioning democracy and for that to work human rights need to be respected at the grassroots level. The Congress is convinced that local government has a special role in promoting social cohesion, dialogue between different communities and non-discrimination and ensuring minority representation through the right of freedom of assembly and association.

The responsibilities and competences of local and regional politicians in human rights implementation are not always clear, and this highlights the need to carry out human rights awareness-raising at the local levels. This awareness raising includes human rights education and training, for elected representatives, their staff and also for the local population. It is important for elected representatives and their staff that they have the knowledge of human rights requirements and legislation in order to respond to the needs, concerns and interest of the citizens.

The respect of human rights should and can be integrated into the daily work of public administration, budgets and service delivery. National action plans and indicators must be drafted in co-operation with the local and regional level. This is a responsibility for the member states and for local and regional authorities. The Congress encourages a systematic multi-level dialogue between all levels of government and works closely together with the Human Rights Commissioner of the Council of Europe, Nils Muiznieks, in this respect.

Lastly, we need to bear in mind that there is no standard solution for implementing human rights at the local or regional level. We need tailor-made tools, adapted to the local circumstances. Exchanges of good practices are a key to success, and the Congress has a significant role to play in disseminating successful experiences. Please help yourselves and take copies of the compendium of Congress texts on human rights with you. Later this year a “Congress Human Rights Action Plan” will be presented to our Monitoring Committee and I invite you to encourage the mayors and councillors in your municipalities to join the network of Human Rights Cities. 

Conclusion

Much has changed since the European Charter of Local Self-Government was opened for signature in 1985, the map of Europe has been redrawn and many challenges in Europe have been seen. The responsibilities of local government have always been something of a power game. There will always be a tension between the forces of centralisation and decentralisation and particularly, in times of crises, the temptation to re-centralize is high. Within this tension, it is important that local governments and national governments act on the principles and conditions of the Charter. In this matter, the Congress is present as a partner to facilitate this through its monitoring and post-monitoring of the European Charter.

Decentralisation can provide some of the answers to many of our contemporary challenges. Local authorities are best placed to serve the interests and needs of their citizens in the most effective and efficient way. Local democracy provides greater opportunities for participation of citizens in transparency and with proper accountability. Local democracy can bridge the democratic gap between the interests of the national government and the needs citizens at the grassroots level.

Although much has have been achieved over the past decades in developing and building strong, resilient and sustainable local democracy, this is an ongoing process, which will never finish. The Congress acknowledges that much remains to be done. There remain huge differences in the degree of local democracy and the quality of governance in our member states. For example, the amount of financial resources delegated to local authorities, differences in responsibilities and power of local governments and the opportunities for citizens to participate in the local decision-making process.

We all need to pursue our efforts to bring about further improvement in order to achieve a clear delimitation of competences and adequate local and regional financial resources for each level of government in law and a well-defined framework for citizen participation.

Altogether, we have much to be proud of, not least this international binding treaty that continues to make a vital contribution to the development of local government in Poland and the other member states countries of the Council of Europe, and as well to neighbouring regions such as the southern Mediterranean (Morocco/Tunisia).

Over the years, we have developed a unique international treaty by adding additional articles to the scope of ratified provisions. We have built a network of partnerships at local and regional level for joint action. We have a powerful mechanism for co-operation and dialogue with national governments and we have accumulated substantial experience in monitoring the Charter and the situation of local and regional democracy every five years. We have also carried out more than 120 observations of local and regional elections over the past 15 years.

The implementation of the Charter is work in progress and a task where we all have a role to play, national governments when they draft legislation, judicial authorities, who must take the Charter into consideration when delivering judgments and local authorities, including you, the executive secretaries, when you advise your elected representatives. The Charter is a reference text for us all and it is for us to keep it alive.

And, as I have said, local democracy is an ongoing process. To meet the challenges of the future, the Congress, in partnership with local governments, must keep setting new goals and actions in order to maintain the quality of local self-government.  We have to ensure that the achievements of this outstanding international treaty not only benefit our generation, but also future generations.

Finally, we must not forget the important role of competent and resilient municipal administrators to support elected politicians. An effective local democracy needs well-trained staff and elected representatives. In order to achieve efficient public service delivery we must enhance the status of local government staff and set out standards for their recruitment, training and promotion. And I am happy to see that you will be discussing training needs and the role of executive secretaries during these two days. And I am even happier that the Council of Europe and its Centre of Expertise for Local Government Reform are sharing international experiences with you.  Thank you very much for your attention.