Mónica Domínguez Martín (coord), Carmen Navarro, José María Rodríguez de Santiago, and Silvia Díez Sastre, Instituto de Derecho Local, Universidad Autónoma de Madrid
Provincial government can be considered a key piece of Spanish local government. Even from an organizational point of view, it could be considered as a territorial power structure characteristic of Spanish administrative law. Currently, the debate on the province revolves around the organization of the second level of local government. By definition, the first level of local government is the municipal level. But most Spanish municipalities cannot effectively exert the powers conferred to them by law due to a lack of human and financial resources. That makes it necessary a second tier of local government to assist small municipalities in carrying out their responsibilities. Otherwise, many of the municipal powers could not be carried out at all or should have to be exerted by the corresponding autonomous community. And this would have a deep impact on local autonomy.
The study of this practice is relevant for the LoGov-researchers as it will allow them to identify and discuss:
- some factors of success or failure of the role of provinces in the Spanish local government structure;
- the extent to which the provinces increase or decrease the centralization of power;
- if provinces or autonomous communities compete or even threaten the legitimacy or autonomy of municipalities;
- the impact of the provinces on the municipalities’ actions, especially with regard to those with a population of less than 20.000 inhabitants (rural areas).
Article 137 of the Spanish Constitution recognizes the autonomy of municipalities and provinces and defines them as a territorial division of the state. In order to guarantee municipal autonomy, the Constitution also guarantees provincial autonomy and provides differentiated treatment for both institutions. By guaranteeing provincial autonomy, the Constitution is also guaranteeing the autonomy of the small municipalities assisted and supplemented by the respective province. In this sense, provincial autonomy is instrumental to municipal autonomy.
Since their creation with the Constitution of Cadiz of 1812 and the Royal Decree of 30 November 1833, the provinces are rooted in Spanish society and have performed different functions: they are a type of local entity; a constituency in the electoral system; a territorial division for the fulfilment of the activities of the state; an entity with initiative in the process of creating the autonomous communities; and they participate in governance and service delivery. According to Basic Law no 7/1985, all provinces are ruled by a council, an executive body and a president. The members of the council are not directly elected, but designated by the councilors of all municipalities which make up each province. The core function of the provinces is to assist and supplement the small municipalities (of less than 20.000 inhabitants) although they can also provide high scale local services, such as urban waste treatment.
Provinces are often accused of having been the cornerstone of the territorial organization of a unitary, centralized and uniform state. On the other hand, it is also argued that they are unnecessary, because sometimes they involve duplication of services, thereby increasing public spending. Such a duplication certainly arises in big cities, where provinces and municipalities develop symmetric policies and programs, such as touristic promotion and cultural events. On the contrary, duplication of roles is rare in rural areas.
Provinces, have responsibilities to coordinate the horizontal cooperation among municipalities. They also assist to municipalities and therefore play a key role in the effective implementation of the principle of subsidiarity. This has a decisive impact on the distribution of powers between the autonomous communities and local governments: not every supramunicipal issue lies within the responsibility of the autonomous communities, but can continue to belong to the municipalities if the province helps the small municipalities provide their services.
The provinces have provided fundamental assistance to small municipalities, have sought to optimize available resources, and have invested in municipal and provincial projects and infrastructure. Most infrastructures or facilities in small villages and towns are financed or directly executed by the provinces. The provincial assistance to municipalities has increased since the approval of Law no 27/2013, of December 27, on the Rationalization and Sustainability of the Local Administration. Moreover, in current pandemic times the provincial assistance to municipalities has also been remarkable, mainly focused on boosting the local economy.
Therefore, the constitutional and legal provinces’ objectives seem to have been partially met. Besides this, the relevant provincial role does not affect or undermine municipal autonomy, as provinces rarely deliver services or promote activities not previously demanded by the municipal governments. This said, a common opinion among local professionals and experts is that provinces are really useful and efficient in rural areas, and not so much when performing in big urban areas.
In order to fulfill its constitutional role more adequately, the provinces could require an institutional reform focused on internal rationalization, transparency, effectiveness and efficiency, and a more precise definition of their competences, which should be primary (competences). The potential overlapping of provincial government’s actions with structures of inter-municipal cooperation remains an issue to be tackled more in-depth. It would be also advisable to overcome the system of indirect election of provincial councils, currently in the hands of political parties and not on citizens (voters), as this causes alienation and ignorance on part of the citizens. Furthermore, a more adequate definition of the electoral body is necessary. None of these advisable improvements are in the current political agenda.
Colás Tenas J, ‘Diputaciones’ (IDL-UAM Especial blog 40 años de elecciones municipales, 20 May 2019) <http://www.idluam.org/blog/diputaciones/>
Plaza Gutiérrez JI, ‘Evolución y cambios de los municipios españoles (1979-2019)’ (IDL-UAM Especial blog 40 años de elecciones municipales, 17 May 2019) <http://www.idluam.org/blog/evolucion-y-cambios-de-los-municipios-espanoles-1979-2019/> Rebollo Puig M, ‘Art. 141’ in Miguel Rodríguez–Piñero and María E Casas Baamonde (eds), Comentarios a la Constitución Española (vol 2, Boletín Oficial del Estado 2018) <https://www.boe.es/publicaciones/biblioteca_juridica/abrir_pdf.php?id=PUB-PB-2018-94_2>