Problems, challenges and opportunities

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Participation and civic society

Box 3.6: Civil society

The legal status of international NGOs

(European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations, ETS No. 124)

The convention establishes the definition and criteria for legal recognition of an international non-governmental organisation (NGO). To achieve recognition, NGOS must:

  • have a non profit-making aim of international utility;

  • have been established by an instrument governed by the internal law of a party;

  • carry on substantive activities in at least two parties;

  • have its statutory office in the territory of a party and central management and control in that state or in another party.

The convention establishes rules on the proof to be furnished to the authorities in the party where the recognition is sought, and sets out exceptional cases in which a party may refuse recognition, for instance where activities of the organisation in question contravene national security, public safety, or is detrimental to the prevention of disorder or crime.

The convention paved the way for the formal recognition of NGOs as one of the four pillars of the Council of Europe.

Status of non-governmental organisations in Europe

(Fundamental Principles on the Status of Non-governmental Organisations in Europe, 13 November 2002)

Considering that the existence of many NGOs is a manifestation of the right of their members to freedom of association and of their host country's adherence to principles of democratic pluralism; and recognising that the operation of NGOs entails responsibilities as well as rights, this document puts forward the following:

Basic principles

NGOs come into being through the initiative of individuals or groups of persons. The national legal and fiscal framework applicable to them should therefore permit and encourage this initiative.

All NGOs enjoy the right to freedom of expression.

NGOs with legal personality should have the same capacities as are generally enjoyed by other legal persons and be subject to the same administrative, civil and criminal law obligations and sanctions generally applicable to them.

Any act or omission by a governmental organ affecting an NGO should be subject to administrative review and be open to challenge in an independent and impartial court with full jurisdiction.

The role of the organisations of civic society in underpinning democracy has long been recognised in political theory. Alexis de Tocqueville recognised the importance of civic organisations in supporting democratic practice in 19th century America.116 More recently, interest in social capital as a fundamental component of successful democracies, has reinvigorated debate about how social networks and organized society can contribute to democratic practice. Robert Putnam’s metaphor of Americans “bowling alone”117 has had particular resonance not only in the United States but also in Europe, not least because it has highlighted the relationship between governments, citizens and the organisations of civic society. In particular, the recognition of changing repertoires of political engagement highlighted in the previous chapter, which has seen citizens move away from the conventional organisations of politics towards more single issue, consumerist or cause oriented styles of engagement, creates a dilemma for governments.118 On the one hand, governments are turning towards new ways of directly engaging with citizens, or groups of citizens, in order to redress the decline in conventional political participation. On the other hand, the organisations of civil society, especially those that focus upon the issues that most concern citizens or which directly confront governments, are becoming of increasing significance to policy making. Governments can have a significant role in shaping the opportunities for engagement and encouraging participation, both directly through government sponsored participation initiatives and indirectly through the plurality of civil society organisations.

The Council of Europe has been involved on both sides of this dilemma. Some of its activities have explored the different opportunities for reconfiguring or stimulating political participation, especially among conventionally-marginalised demographic, socio-economic or ethnic groups. More significantly, however, the Council has sought to involve the organisations of civil society more directly in its activities, originally by defining a legal status for international non-governmental organisations (NGOs)119 and, later, by developing consultative status for a range of international NGOs.120 Indeed, these NGOs have now developed their role within the Council to the point where they are now recognised as being one of the four principal organs of the Council, alongside the Committee of Ministers, the Parliamentary Assembly and the Congress for Local and Regional Authorities in Europe. The organisations of civil society, therefore, have an important role to play in both the activities of the Council and its development of democracy.

Box 3.7: Citizen participation

(Convention on the Participation of Foreign Residents in Public Life at Local Level, ETS No. 144; Committee of Ministers Recommendation No. R (97) 3 on youth participation and the future of civil society; Committee of Ministers Recommendation No. R (98) 8 on children's participation in family and social life)

The Council has adopted a number of instruments that seek to ensure the political participation of potentially marginalised groups.

The Convention on the Participation of Foreign Residents in Public Life at Local Level provides that member states undertake to guarantee to foreign residents, on the same terms as to its own nationals, the "classical rights" of freedom of expression, assembly and association, including the right to form trade unions. They are also encouraged to make efforts to involve foreign residents in processes of consultation on local matters. Under some conditions provided by law, the rights of freedom of expression and of assembly may be restricted.

The convention opens the possibility of creating consultative bodies at local level elected by the foreign residents in the local authority area or appointed by individual associations of foreign residents.

The convention provides also that the parties may undertake to grant to every foreign resident the right to vote in local elections, after five years of lawful and habitual residence in the host country, and to stand for election.

Other instruments address the involvement of young people in political life. See especially:

  • Committee of Ministers Recommendation No. R (98) 8 on Children's participation in family and social life

  • Revised European Charter on the Participation of Young People in Local and Regional Life (adopted by the Congress of Local and Regional Authorities of Europe on 21 May 2003)

In addition, Committee of Ministers Recommendation No. R (2001) 19 on the participation of citizens in local public life contains a wealth of ideas for reinforcing local democracy as one of the cornerstones of democracy in Europe.

The Council has introduced a number of instruments that seek to promote direct participation of citizens beyond voting in periodic elections, or which exhort governments in member states to introduce such measures. These range from the Venice Commission’s definition of the principles on which referendums should be based121 through to Parliamentary Assembly resolutions on how member states can enhance participation opportunities through consultation and engagement exercises.122 In addition, the Committee of Ministers has made a recommendation to member states on establishing balanced participation between women and men in political and public decision making.123 The rationale behind these initiatives is the recognition of the democratic deficit identified earlier. In addition, the background report that underpins the Assembly’s 1997 resolution on citizen participation goes beyond the acknowledgement of democratic failings to suggest new opportunities for engagement that emerge from increasing levels of education among citizens and the potential of new technologies to engage them:

… two new factors tip the scales in favour of enhanced opportunities for citizen participation: the

generally higher level of education and the increasingly powerful information and communication

technologies now available.124

Much of the Assembly’s debate around new modes of citizen participation, however, is focused around the conventional dichotomy of direct versus representative models of democracy. Consequently, its resolution that encourages governments to adopt referendums also emphasises caution and the development of a balance between citizen participation and the exercise of political responsibility:

A prior observation is necessary to prevent a misunderstanding, with potentially weighty implications, and which tends to set direct democracy against representative democracy. The harmonisation of mostly contradictory and conflicting needs of citizens or groups of citizens, dictated by general interest, can be achieved only through parliamentary deliberations. The use of direct democracy must be regarded as a complement. Even in Switzerland, an exemplary country in the area of direct democracy, 95% of decisions are taken by parliament … Abuse of referendums must not obscure their real aim which is to render representative democracy more participative and in so doing to consolidate it and to serve as an antidote to the current malaise undermining it.125

In seeking to develop this balance, the debate returns to the relationship between representative democracy and other modes of political engagement. In reasserting the primacy of parliamentary democracy and the responsibility of politicians, the Assembly clearly moves towards the Schumpterian “realist” view of democracy, in which parliaments are and should remain the proper location for sovereign power. However, such assertions sit at odds with many of the other activities of the Council which are trying to find new ways of engaging marginalised groups around particular policy areas. For example, the Committee of Ministers has promoted the involvement of citizens in the decision-making process affecting health care.126 The Congress has encouraged the creation of consultative bodies at the local level to ensure the participation of foreign residents in local political life,127 which complements the existing convention on the same issue.128 Other instruments have encouraged special measures to enhance the participation of the elderly, young people and ethnic minorities.129 These initiatives not only seek to promote new modes of political participation, they also seek to enhance the political efficacy of particular groups that are marginalised from conventional politics or from influence in relation to particular policy areas, In so doing, these initiatives are seeking to redress perceived political inequalities and to enhance the political power of particular groups. Inevitably, therefore, they develop a tension between the expression of parliamentary sovereignty and citizen participation.

This tension is far from being resolved in political theory let alone in democratic practice. However, one way of understanding the relationship is to consider democratic instruments as fulfilling different functions:130

some instruments, such as voting, are intrinsically numerical in their approach and seek simply to aggregate preferences from individual citizens in order to reach a majority decision;

others are intrinsically negotiative in their approach and, recognising the plurality of interests that are present in society, seek compromise across different interests;

finally, some instruments are deliberative in their approach and encourage citizens to reflect upon competing views in the process towards preference formation. Deliberation reflects the understanding that preferences are not fixed but can develop through a process of enquiry and discussion.

Distinguishing democratic instruments in this way is important, because it allows the relationship between citizens, governments and civil society organisations to be considered in a more systematic way. The formal instruments of representative democracy are primarily numerical: electoral systems are premised upon various methods of aggregation of votes to produce winners. Similarly, Parliamentary decision-making systems use numerical aggregation to determine policy, where parliamentarians vote on issues. However, much of the activity of conventional politics has also been about supporting a negotiative process. Whether building parliamentary coalitions around particular policies or bargaining across organisations to produce support for initiatives, politics is often about trading between interests. Indeed, it is this negotiative politics that lies at the heart of pluralist visions of democracy and on which the support for NGOs in playing a role in democratic government is premised. Deliberative processes are important, however, in so far as much political activity is about persuading citizens to support particular causes or to reflect upon particular ideas. Where mechanisms consciously encourage deliberation, they implicitly recognise that preferences are not preformed but require elements of information and reflection in advance of a decision.

In reality, many mechanisms cross over these distinctions. Decisions made within representative democracies often have elements of all three. Referendums, for example, are explicitly numerical in the way in which they arrive at a policy decision. However, they may also involve negotiation between political parties or other interested groups to establish political support in favour or against the referendum question. In the process of presenting competing arguments, interested parties will also encourage a process of deliberation among citizens. The question for existing and developing institutions of democracy, therefore, is what emphasis do they want to give to these different functions? Parliaments in deliberative mode need to behave differently than in a negotiative mode. Moreover, the aggregative function may need to be reassessed where deliberation is becoming more effective.

The significance of this discussion is that it sheds light upon the way in which different instruments may combine to make democracy effective. Consequently, it offers a set of criteria against which the activities of NGOs and state sponsored public participation initiatives can be judged. Only formal voting methods can really deliver politically-equal numerical democracy. While surveys, opinion polls and other forms of consultation give insights into citizen preferences they are not a reliable form of numerical aggregation. However, a plurality of interest groups and organisations is vital, if negotiative democracy is to be explored. Such plurality is also vital for deliberative democracy to develop, although deliberation can also be sustained through state sponsored initiatives.

Box 3.8: Women in political life

Balanced participation of women and men

(Committee of Ministers Recommendation Rec (2003) 3 of the Committee of Ministers on balanced participation of women and men in political and public decision making)

The Committee of Ministers recognises that democracy can no longer afford to ignore the competence, skills and creativity of women but must become gender sensitive and include women with different backgrounds and of different age groups in political and public decision making at all levels. It recommends that representation of either women or men in any decision-making body in political or public life should not fall below 40%. It recommends that the governments of member states:

  • commit themselves to promote balanced representation of women and men by recognising publicly that the equal sharing of decision-making power between women and men of different background and ages strengthens and enriches democracy;

  • protect and promote the equal civil and political rights of women and men, including running for office and freedom of association;

  • ensure that women and men can exercise their individual voting rights and, to this end, take all the necessary measures to eliminate the practice of family voting;

  • review their legislation and practice, with the aim of ensuring that the strategies and measures described in this recommendation are applied and implemented;

  • promote and encourage special measures to stimulate and support women's will to participate in political and public decision making;

  • consider setting targets linked to a time scale with a view to reaching balanced participation of women and men in political and public decision making;

  • ensure that the recommendation is brought to the attention of all relevant political institutions and to public and private bodies, in particular national parliaments, local and regional authorities, political parties, civil service, public and semi-public organisations, enterprises, trade unions, employers' organisations and non-governmental organisations;

  • monitor and evaluate progress in achieving balanced participation of women and men in political and public life, and report regularly to the Committee of Ministers on the measures taken and progress made in this field.

The problem that the Council of Europe faces is that the mechanisms of numerical democracy are relatively easy to promote across all member states. Indeed, the activities around election standards and monitoring are fundamental to delivering this form of democracy. The structured support that the Council has created for the countries in transition to democracy are one of its great democratic successes. However, developing a strong civic society through a network of NGOs which are, by definition, independent of the state, is a longer--term and more subtle process. In those countries where civil society was largely discouraged or controlled through the state, NGOs are still insufficient in their number and support to achieve the full pluralist vision. Moreover, the historical suppression of a political culture that encouraged deliberation or negotiation also hinders the development of such practices in these newly established democracies. While the understanding of how such organisations might contribute to democracy is becoming embedded within the Council’s acquis, the ability to strengthen democracy through such concepts remains limited in many European countries.


This chapter has concentrated upon identifying and analysing the core democratic principles that are established by the Council’s acquis in the field of democracy. This acquis is a complex base of knowledge that has emerged over time and through a sophisticated process of debate. Its five key principles merit summary here.

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, its relationship 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.

Representation. For parliaments to realise this ambition it 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, they have 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.

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.

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.

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.

These five principles, and the different institutional practices that bring them to life, are central to the Council of Europe’s acquis on democracy. However, in setting out these principles we are not arguing either for exclusivity or coherence. Other principles are occasionally articulated that complement these fundamental ones. These principles are simply those that recur frequently in the Council’s treaties and adopted texts.

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, these principles 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.

Chapter 4 : Making democratic institutions work

Understanding the way democracy can be developed in Europe requires an explicit focus on democratic institutions and the way in which they work. Since its inception, the Council of Europe has been engaged in seeking to design or shape the development of democratic institutions among its member states, originally among established democracies and more recently in the new and emerging democracies. The integrated project “Making democratic institutions work” reflects this general commitment but also turns attention towards the practical challenges of institution building within diverse and complex contexts. It is through institutional devices that democratic principles – such as representation, participation and accountability – are enacted and given meaning.131 In assessing the uptake of standards among members states, the project is concerned both with the health of existing democratic institutions and with the design of new institutions to serve democratic goals (for example e-voting and gender mainstreaming).

An analytical summary of the acquis (upon which the project is based) requires a framework that is able to specify: first, how democratic institutions do their work; second, the challenges for the Council of Europe in making democratic institutions work; and third, the principles for good institutional design. This chapter will address each of these themes in turn.

How do democratic institutions do their work?

In an analytical context the term institution refers to the rules of the game which politics observes in a particular context. Some of these rules are formal, such as constitutions, directives or organisational structures; others are informal norms and conventions and have developed because that is the way politics operates in a particular country. The former are consciously designed and clearly specified, while the latter are unwritten codes and customs – but no less effective because of that. Political institutions work by shaping the behaviour of political actors: politicians, civil servants, interest groups, and individual citizens. The rules of the game do not determine outcomes (think of a game of football), but they do provide the framework within which actors select and pursue their strategies. Political institutions provide a set of specific constraints and opportunities for the practice of democracy.

Rules create “positions” (such as elected representative, executive member, committee chair, partner status); they determine how participants enter or leave these positions (election, appointment, patronage, contract); what actions they are permitted to take (decision, petition, veto); and what outcomes they are allowed to affect.132 While formal rules identify specific procedures, incentives and sanctions, informal rules determine what is considered “appropriate” in different situations, expressing values and identities. Sometimes informal rules reinforce formal strictures, sometimes they override them, representing shadow or parallel institutions (“the way things are really done”).

It is important to remember that it is political actors and not the institutions themselves who do the “work” in building, sustaining and improving democracy. Institutions are no more than paper (or website) statements, or concrete and glass buildings, unless the structures they express are “instantiated” in the behaviour of individuals.133 It is political actors who make and remake institutions on a daily basis. It is politicians, public servants and citizens who match situations to rules, and who make their own decisions about following, breaking or bending these rules.

Indeed, at the present time the number and range of political actors involved in European democracy is increasing. Democratic debate and decision making increasingly involve roles for NGO and private-sector actors. We need an analytical framework that focuses upon the rules of the democratic game rather than upon the particular organisations of the state. Most democratic innovations involve rules and conventions that shape the behaviour of many different actors and organisations, acting both individually and in partnership. The democratic process can no longer be seen as synonymous with the operation of formal state structures – whether at the national, sub-national or supra-national level. Democracy in Europe is being institutionalised in new ways, although old institutions (like legislatures, elected assemblies and local councils) remain important. To continue the football analogy, it is necessary to look at how the game itself has developed, and not at the fate of any particular club (however influential).

Making democratic institutions work is a multi-stage process. Not only do appropriate formal rules have to be created, but they also need to be recognised by the diverse political actors involved, and then embedded over time. Finally, they must be monitored in order to establish whether formal rules are effectively shaping political behaviour and decision making, and have achieved some measure of fit with dominant political conventions. It is a strength of the Council of Europe’s approach that these stages are all accorded significance within the acquis, as shown in the following four examples.

First, binding conventions and non-binding recommendations both play a part in the creation of democratic institutions. For example, as has already been demonstrated earlier, while the European Charter on Local Self-Government specifies the formal rules for central-local government relations, the monitoring reports of the Congress clearly demonstrate differences in national responses to it.

Second, training and awareness programmes and the provision of policy guidelines are important in achieving the recognition of new institutional rules. The work of various parts of the Council in helping transition countries train politicians and embed institutional forms is a significant step in this direction.

Third, the embedding of democratic institutions is served by expert assistance relating to the implementation of instruments. The various conferences and other activities of the project are part of this process.

Last, the Council of Europe is also engaged in monitoring member states’ compliance with commitments related to the establishment and functioning of democratic institutions. These monitoring activities not only highlight inadequacies or problems in implementation, they also articulate institutional values that the Council is concerned with.
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