Problems, challenges and opportunities




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Developing Democracy in Europe


An analytical summary of the Council of Europe’s acquis


Lawrence Pratchett and

Vivien Lowndes


Local Governance Research Unit

De Montfort University, United Kingdom


Integrated project “Making democratic institutions work”


Council of Europe


Executive summary


There is a sense that democracy has reached a significant point in its development in Europe. The institutions of democracy are more widely accepted and practised across the continent than ever before. More Europeans live in democracies and more Europeans subscribe to the values of democracy in their day to day lives than ever before. At the same time, however, there is also a perception of democratic atrophy. Mistrust of political institutions, declining turnout in elections and the rise of terrorism as a major threat to democratic practices are all challenging the conventional wisdom of a comfortable political consensus around core institutions.


Developing democracy in European analytical summary of the Council of Europe’s acquis examines the Organisation’s activities to enhance democratic institutions, in particular through adopted texts and their support material. In summarising the Council’s acquis in the field of democracy, it provides both a stock take of what the Council thinks in this area and an analysis of the problems and opportunities that face European democracy.


Problems, challenges and opportunities


It is important to recognise the problems, challenges and opportunities that face European democracy, because it is these issues that provide the context in which the Council of Europe is seeking to make democratic institutions work.


Problems. The most apparent problem is the perception of an increasing democratic deficit in both established and newer democracies. Participation in formal political institutions continues to decline while the attention of the politically active is increasingly shifting towards issues that are beyond the control of nation-states and take place outside of the traditional institutions of collective politics. Faced with changing patterns of political engagement, the legitimacy of traditional institutions of democracy is called into question. This issue is compounded by a second problem: that of political mistrust. Although some scepticism is healthy for democracy, declining trust in both politics and political institutions is a threat in so far as it encourages even greater distance between citizens and governments. Even if such mistrust was not an issue, however, the extent to which various groups are systematically excluded from political life and effectively disenfranchised, represents a third problem for contemporary European democracy. Whether perceived or real, disenfranchisement is a problem for democracy because it strikes at one of its core principles, that of political equality. Finally, a fourth problem for democracy is the absence of effective civic infrastructures and the active participation of NGOs in political and democratic life in many countries. The organisations of civil society are widely acknowledged to be an important intermediary between citizens and the state in effective democracies. Their absence, therefore, is a fundamental problem for democracy which may inhibit the effective working of its institutions.


Challenges. The challenges to democracy come from outside of its institutional structures or procedures and revolve around broader socio-economic and political pressures. First, an awareness of globalisation frames the limitations of individual nation-states in responding to shifting economic and demographic patterns. While not a new phenomenon, globalisation is currently challenging for Europe because, for the first time, democracy is the dominant mode of political organisation across the continent, making responses to new challenges more complex than in previous eras. Second, the consolidation of various pan-European bodies adds to these challenges. In particular, the challenge is one of concomitant convergence around core beliefs, rules and institutions while, at the same time, seeking to protect and encourage local, national, regional and local differences and identities. As the only body to which all European democracies accede, the Council of Europe has an important role to play in balancing these challenges.


Opportunities. Europeanisation, of course, also represents one of the great opportunities for democracy across Europe. As well as achieving consensus on particular issues, the umbrella of the Council of Europe provides a strong institutional framework for co-operation, learning and policy transfer across Europe. This opportunity is particularly evident in relation to the adoption of new technologies to support or enhance democracy. The Council recognised this opportunity early on and has taken a number of steps to support the effective use of technologies.


Core principles


The acquis is a complex base of knowledge that has emerged over time and through a sophisticated process of debate. However, its main points can be distilled into five core principles.


1. Parliamentary democracy – the Council remains committed to the formal structures of democracy that enforce a separation of powers and a range of means through which opinions can be formulated and articulated. The existence of elected assemblies, in the form of parliaments, remain fundamental to this institutional structure. Parliaments, in this vision, represent a microcosm of the full spectrum of socio-economic and political interests found in the wider community and act as the centre for political debate and deliberation. However, the relationship of parliaments with other attempts to involve citizens directly in the policy process, beyond voting in periodic elections, has not been fully thought through in the acquis.


2. Representation – for parliaments to realise this ambition it is necessary for them to be truly representative of the communities they serve. The Council has focused on three important issues that support this representative process. First, it has supported the principle of a plurality of political parties as forming the foundation of effective democratic politics. Concerns with party financing and the need to prevent corrupt funding of political parties by private interests is significant in this respect. Second, the Council has vigorously promoted good practice in electoral matters through both the definition of standards and the monitoring of procedures. As well as promoting generally high standards across the process, the Council has also focused on issues of disenfranchisement among ethnic minorities and has concentrated particularly upon promoting gender equality as a fundamental feature of democracy. Finally, the Council has also been active in supporting the development of new instruments to support representation.


3. Transparency, responsiveness and accountability – While there are a potentially wide range of issues that might be addressed in relation to transparency, responsiveness and accountability, the Council has concentrated its efforts in three main areas. First, it has sought to define and enforce the ethical standards that all public servants, whether paid functionaries or directly elected, should be expected to observe. Second, it has developed a range of instruments aimed at tackling corruption at all levels, from local government through to international crime and corruption. In seeking to codify the corrupt activities that should be criminalised, the Council has established an important benchmark for inhibiting anti-democratic corruption. Third, the Council has devoted much of its efforts to supporting a free and active media as one of the building blocks of democracy. Linked to this has been a concern with media pluralism as the best way to ensure freedom of expression. It is only by preserving and enhancing all three of these components that political institutions can be seen to be transparent, responsive and accountable.


4. Sub-national democracy and subsidiarity – the European Charter of Local Self-Government has defined the role of local government in a broader democratic polity. However, despite its widespread adoption among member states, the practice of local democracy remains heavily circumscribed in many countries. In particular, the principle of subsidiarity, which requires that decisions be taken at the level closest to the citizen, has not always been observed. The problem is a complex one, not least because no two member states have the same institutional structures at national or sub-national level. However, the principle remains important to democracy and fundamental to the Council’s vision for European democracy.


5. Participation and civic society – the Council, through many of its adopted texts and activities, promotes the principles of participation and civic society. Participation is focused especially around encouraging the engagement of otherwise marginalised groups: young people, ethnic minorities, immigrants and so on. The need for balanced gender representation has also featured prominently in this area. Support for civic society has focused more upon how NGOs can receive official recognition for their contribution to democracy and gain some degree of political legitimacy. However, the relationship between this principle and those more specifically concerned with the institutions of representative democracy, remains underdeveloped.


The development of these principles must also be acknowledged. Given that democracy is an intemporal and incomplete project, it is necessary to acknowledge that the democratic principles that the Council articulates have emerged through an incremental and responsive process, rather than a coherent and stable activity of deliberation. The articulation of particular principles has occurred in response to particular problems or events. The decline in electoral turnout and the perception of a democratic deficit is one such problem. The transition to democracy in Central and Eastern Europe and the accession of a number of states with very different social and political histories is one such event which has significantly altered the path of democratic development. It is not surprising, therefore, to observe that the principles highlighted above are not always mutually consistent and give rise to a number of tensions in the democratic project of the Council. In different contexts these principles often compete with each other in shaping institutional developments. Nevertheless, they underpin much of the work that the Council undertakes in the area of democratic institutions and, as such, provide a base from which to understand the democratic trajectory of Europe.


Making democratic institutions work


From an analytical standpoint, the term “institution” refers to the rules of the game which politics observes in a particular context. Rules may be formal (constitutions, directives or organisational structures) or informal norms and conventions, which may vary from country to country. Rules are more codified, and the latter are unwritten codes and customs. Political institutions determine how the vast range of political actors behave. Institutions, or the rules of the game cannot be said to determine outcome, but they do provide a framework for political action and strategies. They provide a set of specific constraints and opportunities for the practice of democracy.


The Council is implicitly involved in designing democratic institutions and explicitly involved in seeking to make them work. Effective institutional development requires designs that are both revisable and robust. The Council already recognises these requirements: its formal treaties give scope for variation in the way different member states develop democracy. Its adopted texts seek to reinforce principles while, at the same time, allowing a degree of reflection upon various issues. Monitoring of democratic developments adds to both the revisability and robustness of various national and local institutions. However, there is also a danger that, in its desire to respond to contemporary problems, rise to specific democratic challenges and grasp potential opportunities, the Council may ignore both the forces of institutional inertia and the need for sensitive institutional design.


In seeking to make democratic institutions work more effectively, the Council needs first to establish the values that it is seeking to articulate through particular institutional forms. The principles set out above begin that process by clarifying the different principles that are embedded in the acquis and by highlighting the possible tensions that exist within and across them. It is only by surfacing these values that the current rules of the game can be clarified and the embedded positions of different actors understood. Second, in making recommendations for institutional reform, the Council must remain sensitive to the complexities of democracy in different member states, the power relationships that are embedded in particular institutional forms and the influence of history in shaping existing institutional structures. There is little value in making recommendations or establishing commitments to institutional practices that do not reflect these issues and allow institutional variation accordingly. Third, the Council should not approach institutional design from the perspective of a perfect or “ideal-type” model, but should seek to realise its democratic values and ambitions through a combination of different institutional forms that can be adapted to suit different political and cultural circumstances.


Perhaps the biggest contribution of the Council of Europe to the development of democracy across its members states lies in its role as a third party enforcer. Because it is not part of the “institutionalised interaction”, it is able to offer reforms that reflect an awareness of competing power relationships but which are not part of them. Through both its powers of initiation of institutional reform (treaties, recommendations and so forth) and its monitoring and support activities, the different organs of the Council are able to encourage and enforce institutions that are both robust and revisable. They can be robust in so far as they can reflect the core values of European democracy and articulate a consensus across the continent. They can also be revisable in so far as they can be flexible, allowing learning across countries and institutions, and allow for variation in institutional form and practice. Finally, the Council is in a unique position to make the institutions of democracy extendable to other tiers and policy areas. It is only by consciously focusing upon institutional design procedures that the Council can continue to have an impact upon the institutional development of democracy in Europe.


Contents


Chapter 1 : Defining democracy in Europe

Introduction

Classifying the acquis

Chapter 2 : Problems, challenges and opportunities

Democratic problems

Democratic challenges

Democratic opportunities

Conclusions

Chapter 3 : The core principles of European democracy

Parliamentary democracy

Representation

Transparency, responsiveness and accountability

Sub-national democracy and subsidiarity

Participation and civic society

Conclusions

Chapter 4 : Making democratic institutions work

How do democratic institutions do their work?

Challenges in making democratic institutions work

Principles for good institutional design

Conclusions

Chapter 5 : Tensions in developing democracy

Convergence or divergence?

Stability or change?

Conclusions



Chapter 1 : Defining democracy in Europe


Introduction


What does democracy across Europe mean and what steps has the Council of Europe undertaken to support and improve democratic practice? These two fundamental questions lie at the heart of this document. This document is about the Council of Europe’s acquis in the field of making democratic institutions work. In other words, it is about the Council’s own understanding of what democracy is and how it can be enhanced. The arguments presented here, therefore, are not abstract concepts drawn from political theory, nor are they diffuse empirical observations about the development of democracy across Europe. Rather, this document draws upon the Council’s adopted texts to consider the democratic problems and challenges that greater Europe faces, the underlying principles and values that it is seeking to support, and the broader themes and issues that emerge from its activities in the field of making democratic institutions work.


The background to this study is the Council’s first integrated project “Making democratic institutions work”. Since January 2002 this project has worked across the various organs of the Council to pull together the different democratic strands of the latter’s work. It has also taken the lead on a number of issues and produced a series of analytical publications that provide a focus for the Council’s contemporary thinking on a range of issues affecting democracy in its forty-five member states. This report builds upon the work already undertaken by the project to provide a comprehensive analytical summary of the Council’s activities in building and supporting democratic institutions. It also links to the project’s Green Paper on “The future of democracy in Europe”.1 This analysis has informed the deliberations of the high-level group that produced the Green Paper and, in turn, has been shaped by their questions and observations.


The purpose of this report is to analyse the activities of the Council of Europe in making democratic institutions work. It focuses particularly upon the adopted texts of the Council and their supporting material, in order to analyse the Council’s understanding of democracy and the way in which various institutions support it. While this process inevitably looks backwards to what the Council has already adopted or implemented the emphasis of the report is upon looking forward to how different instruments of institutional changes may enhance democracy across Europe. In analysing the Council of Europe’s acquis, therefore, this report is concerned especially with how democracy works and how it can be enhanced by the Council. The primary source for this analysis is the Council’s own deliberations and outputs, related to a wider understanding of democratic development in Europe. Consequently, the focus of the analysis is upon what the Council is doing or thinking in relation to democratic institutions, rather than the activities or behaviour of individual member states (although, inevitably, there is some significant interplay between these actors).


Three important points underpin the analysis that follows and must be emphasised from the start. First, it is important to recognise that the Council of Europe is not responsible for democracy in Europe: it simply provides one arena in which democratic practices can be debated and developed. It has a role to play in encouraging democratic development in individual states and, indeed, across the continent, but it has no responsibility for the failure of individual states to live up to democratic ideals. This point may seem somewhat obvious but its consequences are significant and should not be overlooked. The resources open to the Council to influence democratic trajectories are limited and its relationships with the development of democratic institutions in individual nation-states are, therefore, complex. The acquis reflects not only the democratic ideals that the Council hopes will be adopted within all forty-five member states but, also, the realpolitik of pan-European democratic relations and the limitations that this imposes upon the realisation of democratic ideals. Consequently, where the Council’s ambitions may seem limited, modest proposals may well reflect the recognition of what can be achieved given existing circumstances, more than a lack of democratic ambition on behalf of the Council. The Council of Europe should be recognised for its democratic achievements rather than criticised for the democratic inadequacies of some member states.


Second, democracy is not a tangible outcome that can be reached by all forty-five member states of the Council of Europe but is, rather, an incomplete project which is continuously under development in all nations that strive for democracy. Within this context, it is not possible to define either an individual nation’s progress towards democracy or, indeed, greater Europe’s progress, although it is possible to recognise specific democratic achievements in terms of institution building. There exists, therefore, an element of intemporality in which it is not possible to identify what stage Europe has achieved in building democracy. Instead, it is only possible to point to the institutions that support democracy and the ways in which they enhance democratic practice. The Council of Europe’s acquis must be understood in the context of this intemporality. This report will not seek to analyse the acquis against a discrete model or a set of democratic metrics but, instead, will analyse progress towards institutional design and development. Consequently, the latter part of this report sets out the institutional framework that helps to understand the way in which the Council of Europe is making democratic institutions work in the context of such intemporality.


Third, and linked to the recognition of intemporality, it is necessary to recognise that democracy is not a settled idea or set of institutions. In political theory, arguments persist over what the defining principles of democracy are and what the ideal model of democratic practice should be. In practice, the constitutional basis and political enactment of democracy continues to develop in all nation states. Rather than conceive of democracy as one form of best practice, or even as an ideal type to which imperfect political systems strive, it is necessary to see democracy as a complex of values and principles which interact in different ways in various contexts. Equally, different democratic instruments will have contrasting impacts depending upon the socio-economic and political environments in which they are introduced. The diverse economic and political histories of the various European nations provide a sophisticated context for democratic innovation and a range of opportunities for democratic enhancement. At the same time, specific democratic instruments, such as referendums, participation initiatives and so on, will have differing effects in each nation. The institutions of democracy are essentially different in each of the forty-five member states, reflecting national socio-economic and political cultures and, indeed, historical trends. These differences do not necessarily make some institutions of democracy better than others or, indeed, some nations more democratic than others. A focus upon democratic institutions, therefore, must be sensitive to such differences and leave room for interpretation. For example, the significance of local self- government and the promotion of subsidiarity beneath the level of the nation-state have very different institutional and practical implications, depending upon whether the focus of attention is upon Europe’s largest territorial state (the Russian Federation) or its smallest (San Marino). The focus on democratic institutions adopted here, consequently, seeks to be comparative rather than absolute in its analysis.


These three points are fundamental to the analysis that follows not only because they highlight the limitations of what can be expected from the Council of Europe but also because they indicate the diversity which can be part of the democratic vision for Europe. Indeed, once accepted, these three points highlight the diverse opportunities and strengths that European democracy can build upon.


Classifying the acquis


The analysis developed in this document is based, primarily, upon the Council of Europe’s own documentation. As already stated, the purpose is to analyse the Council’s acquis in order to summarise its knowledge and understanding of democracy and the way democratic institutions function and change over time. It is also concerned with the way in which the Council can contribute to European democracy by making democratic institutions work better. While the document draws upon other evidence to support the development of core themes, therefore, the primary source for this analysis is the Council’s own conventions, recommendations, reports and other publications that it has produced since its inception in 1949.


The Council offers a complex array of documents which contribute to its acquis in the field of democratic institutions. Some of these have full legal status and directly shape the functioning of democracy in member states: others are more discursive in their nature and have only an informal influence on democratic practises. Between these two extremes are a range of other documents which vary in their formality and significance to democratic institutions. Before the analysis can be developed, therefore, it is necessary to clarify the status of the various documentary sources and the way in which they are used in this report.


The term “acquis” refers to the established body of knowledge that underpins existing understanding in a given area: that which is often taken for granted in day-to-day discussions. This knowledge normally remains unarticulated and is not open to question in daily activities. The problem with such knowledge is that its detail often remains implicit and can be subject to multiple interpretations by different actors. This document endeavours to unpick this established body of knowledge in the Council of Europe’s approach to democratic institutions, to highlight its main features, to identify any potential contradictions and to provide a sound basis from which further developments can be built. The term acquis can also be used to refer to the principles and knowledge that are conventionally agreed upon, around which a consensus has emerged and on which all major disagreements have been settled. While democracy as a general value for Europe can be considered a settled concept around which there is a high level of consensus, there remain significant differences of opinion within the Council of Europe and its member states over the way in which different democratic institutions should work and the priorities for future democratic development. Indeed, part of the rationale for this analysis is that such disagreements should be highlighted. Consequently, this analysis seeks both to identify the Council of Europe’s acquis in the field of democratic institutions and to make explicit the tensions that exist in its current knowledge base. It is only from such a basis that the Council can consider its own role in developing the future of democracy.


The potential sources of the Council’s acquis are multiple, the most important of which are:

Council of Europe conventions, treaties and charters;

Committee of Ministers recommendations;

Parliamentary Assembly recommendations, resolutions, opinions and orders;

Congress of Local and Regional Authorities of the Council of Europe recommendations, resolutions and opinions;

reports of other organisations operating under the Council of Europe umbrella, including the European Commission for Democracy through Law (the Venice Commission) and the Group of States against Corruption (GRECO);

various background reports and publications that support the activities of the Council of Europe, including background reports to recommendations, resolutions and opinions, and the outputs of cross-cutting projects such as those of the integrated project “Making democratic institutions work”.


Each of these categories has a potentially different status and will shape the acquis in different ways. This section will briefly outline the implications of each of these categories for the development of the acquis by focusing upon three types of document: treaties, proceedings, and reports and general publications


Treaties: conventions, protocols and charters


The main source of the Organisation’s acquis is its 193 treaties, stretching from its initial statute in 1949 through to the most recent conventions on such issues as cybercrime (2001) or contact concerning children (2003). While there are technical differences between conventions, protocols and charters, they have a similar legal status and are collectively termed “treaties” for the purposes of this analysis. Treaties are normally opened for signature and ratification among member states, with an expectation that those ratifying its content will then take appropriate action by, for example, amending domestic legislation in line with its provisions. This acquis continues to build as charters, conventions and protocols are added or revised by the Council. Furthermore, as different member states accede to various treaties or sections of them, so their significance and European-wide acceptance increases. Consequently, it is a fluid and dynamic acquis that has over fifty years of historical development and the input of some forty-five European democracies but, nonetheless, remains relevant to modern democratic practices.


Some treaties are fundamental to the Council’s existence and continued development. Although there is no set list of conventions that every country has to ratify as a basis for accession to the Council, the Parliamentary Assembly gives an “opinion” on all accession applications which set down the minimum requirements for membership. While the “opinion” is different for every acceding country, the requirements placed upon some of the most recent countries to join the Council provide a good indication of the minimum requirements. Armenia’s accession in 2001, for example, was conditional upon it signing and ratifying within one year the European Convention on Human Rights (and significant protocols that have followed), the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the European Charter for Regional or Minority Languages and the European Charter for Local Self-Government. A longer two- to three-year timetable was proposed for other conventions related to cross-border criminal activities and for the signing of the European Social Charter.2

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