IMPLEMENTATION

The structure of the Belgian state is such that the national government has no formal authority over the regions and communities (there is no hierarchy between the federal and the regional/community levels). In some issues, the regions and communities are actually more powerful than the national government.

Subnational or local government in Iceland has no formal constitutional status. The only paragraph in the constitution that concerns subnational government states that municipal affairs shall be decided by law. The general rules on local government are found in the Local Government Act (Sveitarstjórnarlög), which states that local authorities shall manage and take responsibility for their own affairs. The parliament or the ministry responsible for local government affairs can in general make decisions or laws that affect local authorities (Eythórsson, 1999). Icelandic local authorities are free to do anything that is not forbidden by laws concerning local government activities.

Municipal and cantonal autonomy is very high, while the federation has only a subsidiary role. The central government has little opportunity to counter decisions made by cantonal parliaments or governments. Municipal discretion in policy-making is a constitutional norm. Article 50 states: “(1) The autonomy of the municipalities is guaranteed within the limits fixed by cantonal law. (2) In its activity, the confederation shall take into account the possible consequences for the municipalities. (3) In particular, it shall take into account the special situation of cities, agglomerations and mountainous regions.” The municipalities and cantons make maximum use of their competences.

Canada’s central government takes substantial steps to ensure subnational self-governments may use their constitutional scope of discretion. Canadian provinces, especially large ones such as Quebec and Alberta, guard their constitutional powers closely and allow the federal government little scope to increase its power. Indeed, certain responsibilities under joint federal-provincial jurisdiction, such as labor market training, have in recent years been decentralized and delegated completely to the provinces. When the federal government has tried to assert its authority in economic areas thought to be under exclusive federal jurisdiction, such as the regulation of securities markets, certain provinces have vociferously objected and taken the federal government to the Supreme Court.

Municipalities in Finland have a long tradition of independence in specific policy areas, while also implementing policies of the central government. In particular, municipalities are responsible for the implementation of educational, health, social and infrastructural services. Municipalities may not be burdened with new functions or financial or other obligations, nor may they be deprived of their functions and rights except by an act of parliament. The control that the state exercises over municipalities does not imply any general right of the state to intervene. Control may be exercised only in accordance with specific legal stipulations. Thus, subnational autonomy is guaranteed and protected by law. Still, the autonomy of local government may be curtailed by financial pressure.

Except for the occasional disagreement over mandates that are not funded and the extremely rare case of direct intervention in local taxes (as has happened only on very few occasions), central government fully respects the values of local autonomy. To be sure, when these issues are discussed or researched, the question has not so much been whether central government allows local government to exercise its autonomy but rather to what extent local government transgresses its role (and consequently undermines fiscal solidity). The constitution does not define any limits for local government action. Instead, those boundaries become defined whenever citizens appeal local government decisions to the courts. Central government does not question the principle or the exercise of local autonomy.

There are not many mechanisms by which the federal government can ensure that the subnational (state) governments are acting in compliance with federal government policies. Renegotiating the distribution of state revenues between both levels would theoretically put pressure on the subnational level to comply with federal policies. However, this is difficult to carry out given the vested interests of parties governing on both levels (federal and state) which are trying to maintain as much autonomy as possible for the state level they control.
On the other hand, the policy fields the states can regulate are of limited importance and the power of the second chamber representing the states is also limited.

Section 82 of the Danish constitutions reads that, “The right of municipalities to manage their own affairs independently, under state supervision, shall be laid down by statute.”

So the constitution assumes some autonomy of municipalities, but leaves it to parliament to determine the scope. Indeed, in a comparative perspective Denmark is a decentralized state, but it is not a federal state. In recent years there has been a tendency to curtail the effective discretion of lower layers in the public sector, in particular the municipalities. The People’s Assembly can, at any time, change the scope of local autonomy and its organization. The latest change came in 2007, when the reorganization resulted in a total of five regions and 98 municipalities (kommuner). At both levels there were mergers to create bigger units, with economies of scale, and greater capacities for dealing with delegated tasks.

The regions are mainly responsible for health and regional development, while the municipalities have a wider range of tasks. They basically administer the welfare state: schools, day care, elderly care, libraries, sport and roads. They play an important role in employment policy as well.

The allocation of tasks and responsibilities between the federal and state governments is contained in the Basic Law. There are many links between the fields of responsibility, and a clear differentiation is not always possible. However, Federalism Reform I brought some additional precision and clarification of competences for the states. As mentioned above, in some fields the states’ ability to act is limited by the available funding. The Federalism Reform II passage was no success in this respect. The states’ lack of autonomous tax powers represents a significant weakness.

There is a clear legal framework for local government autonomy, consisting of the Local Government Act 2002, the Local Electoral Act 2001, and the Local Government (Rating) Act 2002. There is no de facto infringement of this scope. A reform of the Local Government Act 2002 is currently under way. Local governments do not enjoy constitutional status, as they are creatures of statute. Though the Local Government Act 2002 gave them a general power of competencies, it did not confer additional taxing powers. As noted already, local governments in New Zealand are unusual in terms of their relatively narrow task profile and their inability to tap into other commonly used sources of subnational revenue such as sales and/or income taxes. Local governments therefore raise a relatively large proportion of revenues from rates and charges and given concerns about rating levels, they are fiscally constrained from expanding their roles and functions.

Local and regional governments’ discretion over exactly how resources should be spent faces no significant limitations. Effective discretion is limited by the tightness of budgets, but money can be transferred between uses. A clear example of this was the decision of most regional authorities, under predominantly Social Democrat control, to cover the health charges (CZK 30, or about €1.20, for consultation with a doctor) introduced by the Topolánek government. They were able to do this out of health budgets because the sum was reasonably small, and in practice not all patients claimed the money back. However, the policy could not be continued indefinitely without taking resources from outside the health budget, and councils announced they would abandon it even if the new parliament did not withdraw the fees after the May 2010 elections.

Local government depends increasingly on transfers from the central government. The land-use regulation was centralized in the most recent legislative period and a first conflict between local interests and the rules of the integrated traffic and land use plan (Integrierte Verkehrs- und Landesplanung, IVL) occurred when the construction of a business center with 129 shops in a rural region near the capital was not authorized.
With the reform of the education system the municipalities have lost one of their major prerogatives, the autonomous management of teaching staff in primary school (involving pupils from four to 12 years of age).
In return, the government program promises more autonomy as a result of the territorial reform, especially more financial autonomy and the backing of municipal finance by regional funds.
This increased financial autonomy and backing of municipal finance was part of the governmental program in 2009 but has not progressed to date.

In Mexico, constitutional discretion is less a matter for the central government than for the judiciary. The courts are independent, and the Supreme Court in recent years has worked quite hard to define the powers and limits of the various levels of government. There have been many cases involving jurisdictional conflict, and subnational governments quite often win them. Municipal autonomy in Mexico is guaranteed under Article 115 of the constitution. The central government would probably like more control over the subnational governments, but it has to respect the law.

The decentralization that started in 1998 has been broadly accepted in Poland. Some conflicts have emerged from the dual structure of the regional executive, with conflicts over responsibilities emerging between regionally elected regional governments and the centrally appointed leaders of the regional administration. The latter have the power to suspend decisions of the regional government within 30 days. Unlike its predecessor, the Tusk government has largely refrained from intervening in the affairs of subnational governments. Moreover, it has supported calls for clarifying the division of labor at the regional level and for strengthening regional self-government.

The dual nature of U.S. federalism assures a large amount of discretion for lower level governments. Limitations enter through the system of grants-in-aid, the impact of cooperative federalism, the constitutional authority of the federal government to pre-empt areas of policy or impose obligations on state governments. The relative authority of the state and federal governments is a chronic source of controversy. The federal constitution is “the supreme law of the land.” It reserves authority to the states in many areas, but the interpretation of the constitutional division of authority is controversial and subject to change. In July 2010, a federal court, agreeing with the Obama administration, invalidated an Arizona law that provided for aggressive state level investigation and prosecution of illegal aliens. The U.S. political and legal elite are sharply divided over the question whether the federal government pervasively exceeds its legitimate constitutional authority in imposing decisions on state governments.

The allocation of powers to subnational governments is rather loose, and there is neither a clear hierarchy between the three levels of decentralized government (regions, departments, local level) nor a clear-cut division of competences. The effect has often been that the three subnational levels intervene, each in its own way, in the same policy field. The government has promised a decentralization reform to clarify and to simplify decentralized competences and to reshape the territorial administrative landscape, but the bill that passed in 2009 is rather moderate; every real change would be subject to strong opposition.
Some instances of recentralization have occurred by fiscal or administrative means: tax reforms limiting local financial autonomy; new regulations in the name of territorial cohesion; and mixed financing on regional infrastructure investments, which sets up deliberations between central and regional authorities and gives the state the possibility of influencing regional choices. But in spite of the usual stereotypes about French hyper-centralization, it is fair to say that subnational government enjoys a lot of freedom of maneuver. Legally they are subordinate. Politically, the influence of local elites in parliament and in particular in the Senate is decisive.

There is ongoing tension between local and central governments over discretion in local governments. The trend has been that central government increasingly ties the hands of local governments, for example by controlling expenditure at the local level through earmarking of transfers. There is nothing to suggest any recent reversal of this trend.

The central government usually enables the 17 regional governments to use their substantial autonomy fully and (as an additional feature of the semi-federal nature of the highly decentralized Spanish system), the Constitutional Court protects the regions in cases of formal or de facto unconstitutional interference. As discussed above (see Task Funding), the decentralization process has not always been characterized by loyalty to the center, and in some cases the central government has reduced the scope of discretion of the new autonomous governments (at times inadvertently, but also in deliberate attempts to weaken them politically).
From 2008 to 2010, some regions (particularly Catalonia and the Basque Country) complained about several initiatives of the center that had reduced their economic capacity and political autonomy. For example, the active involvement of the central governmental in policy areas such as housing, care of dependent people or even culture has been criticized. Fiscal measures (such as some aspects of the Spanish Economy and Employment Stimulation (Plan E), or the recently approved restrictions on regional public deficit and public debt), the strengthening of the central level government thanks to the EU integration process, and an expansive interpretation of what framework legislation involves (even including administrative regulations) are often mentioned by the regions as having undermined their autonomy. In the last two years, some laws passed by the central parliament encroach on or overlap with regional laws, leading to political conflicts which ultimately will have to be resolved by the Constitutional Court. Nevertheless, the limitations imposed by the government on regional autonomy may be in accordance with the constitution, while tending toward continued centralization.

Local governments legally enjoy a considerable degree of autonomy concerning mandates and tasks that do not touch on constitutional issues, and which are executable within the allocated budget. Furthermore, the government has tended to devolve responsibilities to local governments (i.e., in the domain of urban regulation). In comparison to the local level, regional governments enjoy a high degree of budget autonomy. At the regional level, the governors’ (indendantes) autonomy is limited by their simultaneous function as representatives of the national government and heads of the regional advisory councils.

Ireland is a unitary state, without regional self-government or a significant degree of autonomous local self-government. Article 28a of the constitution simply states: “The state recognizes the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.” There has been no significant development through legislation of autonomous local government over the life of the independent Irish state.
In keeping with its weak constitutional foundation, the role of subnational government is perceived as narrow and weak by the electorate. The main units of local government – the counties and county boroughs – are mostly small, and many have weak economic bases. (The smallest county has a population of less than 30,000 people.) Eight regional authorities have been formed, comprised of groupings of counties, and they coordinate some of the county/city and subcounty activities, and monitor the use of EU structural funds. However, these have had little impact on the functioning of local government or the perception of their role by the electorate. They have, however, led to some proliferation of quasi-autonomous non-governmental organizations (known locally as quangos).
Regions and counties play such a limited independent role in the provision of public goods that they are unable to attempt to attract business activity or population to any significant degree. They are reduced to lobbying national bodies, such as the Industrial Development Authority, to work on their behalf. The standard reaction to local difficulties is to seek additional support and subsidies from the central government.

As a result of constitutional changes introduced in 2001, the fields in which the national state and regions have concurrent legislative powers have significantly increased. In these areas, the state should simply define general guidelines, leaving to regional assemblies the definition of specific legislative contents. However, the national government and parliament have a tendency not to respect this division of competences, impinging upon the sphere of regional autonomy. For their part, regions sometimes adopt a posture of resistance to national rules. This has produced a significant amount of litigation before the Constitutional Court.

The financial dependence of local governments on transfers from the central government means that the latter has considerable control over ostensibly decentralized functions. In December 2008, the central state owed an estimated €100 million to more than 100 town halls.
The central government significantly diminished its financial contribution to the autonomous region of Madeira beginning in 2010.

The Fico government did not continue the policy of decentralization pursued under its predecessor, but sought to strengthen the position of central government. During the period under review, subnational governments and central government often clashed. One case in point is the 2008 amendment of the Highway Act which made it easier for central government to overcome local resistance against highway projects.

While autonomous local governments are protected by the constitution, there is no constitutional specification of their competencies and rights. Due to the very high dependence on transfer payments, most regional and local governments are vulnerable to interference by the central government. The reality of inadequate budgetary and functional authority in many local areas, as well as the disproportionate influence of city and provincial authorities, often leaves local administrators and governments short on revenue and effective governing capacity.

While local authorities were given more independence and assigned new tasks in the early stages of the New Labour government, and were required to work together with other local institutions in order to meet targets and performance indicators set by the central government, this “new localism” was only patchily implemented. Since local authorities possess no constitutional rights, any increased autonomy for them relies on the discretion of the central government.
Even though devolution in Scotland and Wales is strictly speaking not a constitutional matter either, the general consensus is that the devolution acts cannot be repealed by the British Parliament against the devolved governments’ wishes. Moreover, the rights granted to the subnational entities vary, in that the Scottish Parliament has the power to vary the basic income tax rate by 3% in either direction (although it has not done so). The Welsh Assembly has no such power.

On the whole, the central government makes no attempt to dictate to the country governments (i.e., Scotland, Wales and Northern Ireland) how they use their discretionary powers, but can be more prescriptive towards English local authorities. The decision not to impose university fees in Scotland has led to controversy, as they are imposed in England, and this has resulted in Scotland asking English students to pay, but not those from other European countries.

The responsibilities of the Commonwealth and of the states and territories are clearly laid out in the Australian constitution. However, they have been subject to judicial review over the course of the century, and this has resulted in the increasing centralization of executive power. In turn, the policies of the major political parties have been to increase this centralization in the interests of fiscal and administrative efficiency. The states and territories have sought legal redress through the courts on the occasions when they have felt that their authority has been diminished by the Commonwealth government.

The federal government has also on a number of occasions used its superior financial position to coerce state governments to relinquish powers or adopt favored policies of the federal government, which has had the effect of subverting their constitutional scope of discretion. Most recently, in April 2010 the federal government took control of the public hospitals in all but one state in return for increased funding.

The central government formally respects the constitutional independence of subnational governments. De facto, however, the central government has often narrowed subnational discretion. This has been favored by the far-reaching fiscal dependence of subnational governments on the central budget and the weakness of municipalities that are very fragmented and often very small. Moreover, the central government sought to balance the strong position of Fidesz at the subnational level after the 2006 elections.

Local autonomy is guaranteed by the Japanese Constitution. However, Articles 92 to 95 of Chapter VIII, which discuss local self-government, are very short and quite unspecific. The central state makes its power felt through three mechanisms in particular: control over vertical fiscal transfers, the delegation of functions that local entities are required to execute, and personnel relations between the central ministry in charge of local autonomy and local entities. Moreover, ”carrots” exist as well as “sticks,” such as cofinancing schemes for public works. In the last decade, there has been a growing number of initiatives aimed at increasing local autonomy further. To some extent, this has been motivated by fiscal necessity, as local autonomy was seen as a way to save money. However, some of the pressure has come from local populations and civil society organizations seeking to take over local functions, arguing that they have more insight into what is needed and sensible on their level.

Dutch local governments are hybrids of “autonomy” and “co-government” forms. However, local autonomy is defined mostly negatively as pertaining to those tasks left to local discretion because they are not explicitly mentioned as national policy issues. Co-government is financially and materially constrained in quite some detail by ministerial grants. Increasingly, Dutch national government uses administrative and financial tools to steer and influence local policy-making. Examples include administrative agreements, covenants, performance agreements, monitoring and benchmarking. Some would go so far as to claim that, violating the European Charter for Local Government, the aggregate of all these tools has created a culture of quality control and accountability that paralyzes local governments. This is due in part to popular and political opinion that local policy-making, levels of local service delivery and local taxes ought to be equal everywhere in the (small) country.
As mentioned under Task Funding, Dutch local taxes, both as revenue (% of GDP) and as tax power, are internationally insignificant. The recent abolition of real estate taxes on the use of houses has decreased local tax powers even more.
Decentralization allowances, which increase the size of the so-called general fund for local government, have, nevertheless, been given on condition of department approval of local government plans. This clearly violates the principle that the general fund is given unconditionally.

The Municipality Law grants local governments only very limited competences, and places them additionally under the jurisdiction of provincial governors. An amendment authorizing local governments to open preschool education institutions in 2004 was annulled by the Constitutional Court the following year, with the court arguing that the provision threatened the unitary character of the Turkish state. This mindset controls the relationship between the central and local governments, which are accused – not always unjustifiably – of being centers of corruption and real-estate speculation.
According to Article 127 of the constitution, local administrative bodies are public corporate entities established to meet the common local needs of the inhabitants of provinces, municipal districts and villages, whose decision-making organs are determined by the electorate as described in law, and whose principles of structure are also determined by law. However, the central administration has the power of administrative trusteeship over the local governments, under a framework of legal principles and procedures designed to ensure the functioning of local services in conformity with the principle of administrative unity and integrity, to secure uniform public service, to safeguard the public interest and to meet local needs in an appropriate manner. Although the constitution says that municipalities are to be allocated financial resources in proportion to their functions, there is a perpetual lack of money. In addition, they need the approval of the central government for many issues.
A recent example in Istanbul illustrates the impact of the central government’s involvement in local affairs. Although the Istanbul Metropolitan Council passed an environmental plan in 2009 stating that there was no space for a third bridge on the Bosphorus, the central government, which is run by the same party, initiated the construction of a third Bosphorus bridge. Additionally, the relevant plans and projects are being conducted not by the municipal government but by the Ministry of Transportation.

Compared to other southern European states such as Italy and Spain, Greece is a unitary and centralized state. Authorities at the regional level are appointed by the central government. There are elected authorities at the prefectural and the municipal levels, which are organized along the French model of administration. Whereas the Greek constitution grants economic and administrative autonomy to subnational self-governments at the prefectural and municipal level, in reality this autonomy is circumscribed. Even though such subnational units have acquired more competences over time, they are not financially sustainable, as they depend heavily on the ailing fiscal policy of the central Greek state. Administrative incapacity is another factor limiting prefectural and municipal authorities’ autonomy. For example, municipal services are staffed by unskilled personnel, who are not able to carry out complex tasks related to local economic planning and programming, law enforcement (even within the jurisdictional realm of the municipal police), or social care and social services. Moreover, there has been frequent reshuffling of competences, from the central to the local level of public administration and back again. Thus, even though the central government does not deliberately preclude the development of subnational self-governments, prefectural and municipal governments accomplish very little within their scope of discretion.