Marta Pérez Gabaldón and Joaquín Marco Marco have attended the XX Congress of the Asociación de Constitucionalistas de España (ACE) organized by the University of Extremadura and held at the San Francisco Cultural Complex (Cáceres).
This publication is the second chapter of the papers presented by our colleagues attending the XX Congress of the Asociación de Constitucionalistas de España (ACE) on the Rule of Law.
In this case it is the communication made by the professors of CEU Cardenal Herrera University, Marta Pérez Galbadón and Joaquín Marco Marco, who is also a lawyer of Les Corts Valencianes. Both have participated in the Roundtable 2: Rule of Law and separation of powers where they have exposed their communication “Regulation and use of Decree-Laws in the Autonomous Communities: The silent invasion of the executive to the legislative.”
In this communication, the rapporteurs have started from the incorporation of the decree-law into the Spanish legal system and its subsequent reception by the Autonomous Communities, to explain what it consists of and then analyze the use of this legal instrument by the autonomous governments.
Firstly, they explained the situation of the separation of powers in Spain, where for decades the executive and, in particular, its president, has progressively assumed greater powers than those initially provided for in the Constitution, to the detriment of the rest of the powers of the State.
It is in this context where the exceptional and extraordinary figure of the decree-law, allowing the government to approve norms with the rank of law, becomes important, and in this sense, it has become a co-protagonist or even the protagonist of legislative production. However, despite the fact that this legal instrument is provisional and requires parliamentary validation, in practice, there are numerous decree-laws which have not been validated or which, after being validated, have gone on to be processed as bills.
As our colleagues have stated, this problem has been transferred to the autonomous level after the statutory reforms at the beginning of the 21st century, with ten Autonomous Communities having this legal figure.
Secondly, they have explained the regulation of the decree-law at national and autonomous level in order to delimit its use in the latter sphere. As a result of its provision in art. 86 of the Constitution, there are five fundamental characteristics:
1. Provisional legislative provision
2. It may only be used in cases of extraordinary and urgent necessity
3. It has material limits
4. Its validation or repeal is the responsibility of the Congress of Deputies (maximum term of 30 days from its enactment)
5. The Congress of Deputies may process the text as a bill (urgent procedure)
Therefore, it is not expressly established that a body other than the national government may issue decree-laws, but rather it has been the Constitutional Court that has conditioned the existence of this legal instrument to its provision in the Statutes of Autonomy, “with each of the EEAA having to establish, as they do, except in the case of Valencia, which opted for such reference (to matters of state scope), its own material limits.”
In this regard, the rapporteurs understand that “the extraordinary and urgent necessity will not occur in the same way at the state and autonomous level, and this, on the one hand, because the ACs are not competent in those matters (…) having, per se, fewer options to make use of the decree-law; and, on the other hand, because being unicameral parliaments -without double deliberation of the laws-, smaller and easier to convene, they should have less “need” to resort to extraordinary regulation.”
I. Brief analysis of this legal figure
– Separation of powers. It is difficult to fit into the classic scheme of division of powers.
– The qualifying condition is extraordinary and urgent necessity. There must be need; such need must be urgent, requiring a peremptory response; and it must be extraordinary.
– Laxity of the guarantees in its governmental and parliamentary elaboration. The procedural requirements for the elaboration of other norms are reduced and, in the parliamentary sphere, the presentation of amendments is prevented, with the evident reduction of the minorities’ capacity to maneuver, except for processing as a bill (this is unusual).
– Use of the decree-law to regulate matters that could be regulated by regulation. It prevents citizen participation in the procedure of elaboration of the norm and, above all, that the individuals can go to the ordinary courts (only appeals of unconstitutionality or appeals for protection, both before the Constitutional Court, are admissible).
– Material control. The Constitutional Court controls the enabling situation and the material content, that is to say, that it does not invade matters excluded by the Constitution or the Statute of Autonomy.
II. The use of decree-laws in the Autonomous Communities
Our colleagues have explained that as of January 25, 2023 the use of the decree-law has been very uneven.
“PREVIOUS STUDIES ON THE RELATIONSHIP BETWEEN THE EXECUTIVE AND THE LEGISLATURE SHOW EVIDENCE OF THE PREPONDERANCE OF THE FORMER OVER THE LATTER, A TENDENCY THAT IS EVIDENT WHEN THERE IS A MAJORITY GOVERNMENT, WHILE THE PARLIAMENT HAS GREATER LEGISLATIVE AND OVERSIGHT CAPACITY OVER THE EXECUTIVE WHEN GOVERNMENTS HAVE THE BACKING OF A MAJORITY GOVERNMENT IN THE CHAMBER OR IS DIVIDED”
In the period analyzed, from the VII legislature up to and including the XIV, 114 decree-laws have been passed under governments with an absolute monocolored parliamentary majority, 640 under multicolored coalition governments, and 34 under governments with a simple majority. Thus, the non-existence of a solid monocolor and solid parliamentary majority is a key factor in their use by the autonomous governments as well.
Regarding the validation or repeal of decree-laws by the regional parliaments, the rate is very low with respect to those that are not validated, and the tendency to process them as bills is also very low (in contrast to what occurs at the state level).
In the Legislature marked by the COVID-19 pandemic, the number of laws passed by the autonomous parliaments is less than the number of decrees-laws validated. Referring to the data collected by the rapporteurs, “more than 60% of the Decree-Laws passed in the Autonomous Communities have been issued since June 2019, the date on which the Legislature affected by the pandemic began. That is to say, in less than 4 years (depending on the cases), the number of Decree-Laws approved is bigger than in the 12 that go from 2007 to 2019.”
However, in comparison with those Autonomous Communities that have not provided for the decree-law in their Statutes, their legislative activity is not greater and was not increased as a consequence of the pandemic, so that our colleagues have concluded that they resorted to other instruments to deal with the management of this situation, and that this was possible.
III. Conclusion
In short, there has been an “abusive use of the figure, linked to a lax interpretation by the autonomous executives of the enabling budget who, in the face of the permissiveness of the Constitutional Court, abandon the ordinary use of the law”.
In this sense, the scope of competence of the autonomous parliaments has been invaded and the procedural convenience of the decree-law has increased its use, to the detriment of the use of the regulation, diminishing the normative control and negatively affecting the role of the parliamentary minorities. All of this is a detriment to the Spanish Rule of Law.
