Chapter 3 From government to governance – running the state, making policy and policing the constitution Passing power downwards – n Chapter 2, we looked at challenges to the supposed integrity and decentralization 78 impermeability of the traditional European nation state. We discovered that the latter was under pressure from both within and without. Not ‘More control over less’ – I central government every country was affected by minority nationalism, but all had conceded reform 85 important powers to the EU, not least in the economic and legal domains. Those worried by such developments can perhaps derive some comfort Policy making – sectors and styles 93 from the fact that, notwithstanding such concessions, each country still retains its unique constitution. This formal legal framework sets out the The booming third branch rules of the game for politicians, citizens and the institutions by which they of government – the judicialization of politics 100 govern and are governed. As well as defining the rights (and sometimes the duties) of the citizen, the fundamental feature of most constitutions is a so- called ‘separation of powers’ between the legislature, the executive and the judiciary (see Box 3.1). This chapter focuses primarily on the bureaucratic side and the policy making of the second of the ‘three branches’, the executive. This is the body that traditionally ‘runs the country’ or ‘governs’, albeit under the supposed direction of democratically elected politicians who form the government of the day and who are themselves meant to be under the watchful eye of par- liament (see Chapter 4). But this chapter also considers the increasing importance of the third branch – the judiciary and the courts. It has two main themes. The first is that, once again, we see some com- monalities, but also the persistence of national differences. The second main theme is that governing in Europe, inasmuch as it was ever easy, is not as easy – or as easy to describe – as it used to be. As with the nation state, the scope, and even the size, of the executive is everywhere questioned. Authority, even where it is accepted, is more diffuse or spread out. What we used to talk of simply as government, it seems, is giving way to what is now termed governance (see Peters and Pierre, 2000). The former conjures up an image of institutions run by or on behalf of the state delivering, in more or less top-down fashion, those public goods which citizens (and the groups we examine in Chapter 8) are presumed to need. The latter implies a more complex process by which executive institutions – public and private, central and local – combine more or less smoothly to deal with the demands of increasingly less deferential individuals and interests. In short, ‘[the] top- down use of authority which characterizes government has given way to persuasion, incentivization and other forms of mobilization characteristic of networks’ (Page and Wright, 2006: 4). It is this development, when com- bined with the growing impact of the EU, that has led political scientists to talk of the spread throughout Europe of the multilevel governance we defined in the Introduction – namely, the dispersal of power, a multiplica- 78 | European Politics gained in strength, via measures to improve coordi- BOX 3.1 nation between a formerly more fragmented bureaucratic machine. Have recent developments Separation of powers such as the establishment of arm’s-length ‘agencies’ (running things on behalf of government but not run The political philosopher Charles de Secondat, by government) helped to ‘hollow out’ the state Baron de la Brede et de Montesquieu (Rhodes, 1997) to a degree that undermines one of (1689–1755), known to us simply as Montesquieu, the key branches of government? Or have they published his On the Spirit of Laws in 1748. In it, simply allowed it ‘more control over less’? The he famously argued that the ‘checks and balances’ chapter then goes on to show how the authority of required to safeguard a country against tyranny the executive (and possibly parliament) is now con- were best embodied in the ‘separation of powers’ strained by the activism of the judiciary to such an between the following ‘three branches of govern- extent that we should perhaps see the latter, too, as a ment’. These were a legislature to pass laws and part of the multilevel governance emerging across agree taxation, an executive to administer those the continent. laws and take decisions where appropriate and a judiciary to broker disputes. In his time, Montesquieu believed that this division of labour Passing power downwards – was best exemplified by England. Since then it has become better entrenched – albeit with a rather decentralization more active executive than Montesquieu may have envisaged – in the USA. It also helps structure pol- In Chapter 2, we referred to the classical distinction itics in Continental Europe, and is an important between unitary and federal states (see Elazar, 1997) part of an ideal that emerged in German constitu- and noted that it was breaking down as some former tional theory but spread throughout the continent unitary states moved toward federalism. This move – namely, the Rechtsstaat, a state whose acts must between classical categories, however, has been made conform with laws enshrining fundamental rights. only by the handful of countries we discussed in Chapter 2 – namely, Belgium, Spain, the UK and (possibly) Italy. Apart from Germany, Austria and tion of sites of authority and policy competence, and Switzerland, all the others remain unitary states: no a mixture of cooperation and contestation between CEE state chose to become a federation or to stay in tiers of government that would formerly have been one. Yet that binary distinction between unitary and considered separate and hierarchically ordered. federal has always been as much analytical as real. In This chapter begins by looking at how and why ‘unitary’ Scandinavia (especially Denmark) local power has allegedly passed downward toward lower government has long collected (relative to other levels or tiers of government – a process often non-federal states) a large proportion of state rev- labelled ‘decentralization’ or, more specifically, enues (see Table 3.1). It has also been quite a big ‘devolution’ (see Chapter 2) or ‘regionalization’. It spender and runner of services, all of which has then returns to the topmost level – to the so-called allowed room for regional variation. And even core executive. It explores whether (and if so why) outside Scandinavia, local authorities in Europe are the core executive has shrunk, yet also possibly responsible for a raft of things that in some coun- tries would be the preserve of central government The core executive is a label given by political scien- (or private companies). These include public tists to the heart of government. It comprises both housing, public utilities, welfare and health. the political part of the executive – normally Cabinet Consequently, even if they do not collect much of and Prime Minister – and its bureaucratic support, as their country’s revenue, they account for quite a well as key civil servants from the most important departments, ministries and intelligence chiefs. The high proportion of its spending (Table 3.2). core executive normally operates out of the national Spain, as we saw in Chapter 2, is not a ‘normal’ capital. federal country, but even the supposedly more con- ventionally federal Switzerland and Germany are by From government to governance | 79 Table 3.1 The central/regional/local split of taxation, 2000 and 2009 2000 (%) 2009 (%) Central Regional Local Central Regional Local Spain 48.7 7.8 9.1 29.0 22.1 9.4 Germany 28.4 22.7 7.0 30.3 21.2 7.6 France 42.1 0.0 9.7 32.9 0.0 12.5 Poland 51.8 0.0 9.1 50.7 0.0 13.2 Italy 55.6 0.0 14.4 53.2 0.0 14.1 Sweden 60.6 0.0 28.9 57.6 0.0 35.6 EU-27 average 60.4 15.2 10.4 58.0 20.1 10.7 Netherlands 55.9 0.0 3.4 59.2 0.0 3.7 Czech Rep. 75.9 0.0 12.0 68.4 0.0 14.2 UK 94.3 0.0 4.0 94.0 0.0 5.2 Note: The remainder of taxes are taken by social security funds. Source: Data from Eurostat, Taxation Trends in the EU, 2011. Table 3.2 The central/regional/local split of spending, 2000 and 2009 2000 (%) 2009 (%) Central State/Region Local Central State/Region Local USA 48.4 51.6 0.0 53.5 46.5 0.0 Switzerland 20.1 31.7 20.9 14.0 36.9 19.1 Spain 25.8 28.3 12.6 20.8 35.7 13.7 Germany 14.2 23.6 15.5 19.2 21.0 15.7 Netherlands 31.3 0.0 35.4 30.5 0.0 34.0 Italy 34.2 0.0 30.0 31.9 0.0 31.1 Poland 41.3 0.0 24.1 33.0 0.0 32.5 France 38.1 0.0 18.3 34.0 0.0 20.7 Sweden 45.8 0.0 43.0 39.6 0.0 47.5 Czech Rep. 64.6 0.0 22.8 59.7 0.0 27.0 UK 71.6 0.0 28.4 72.3 0.0 27.7 Note: Remaining expenditure is accounted for by social security funds. Source: Data from OECD, Government at a Glance 2011. 80 | European Politics BOX 3.2 Alpine exceptionalism – the Swiss confederation Each of the 26 cantons that make up the Confoederatio Helvetica (CH), or Switzerland, is linguistically homogeneous.