As is well known, the decree-law (D-L) is a norm with the force of law — it can modify and repeal preexisting legal provisions— provided by the Spanish Constitution (CE) to allow the Government to act quickly and decisively in cases of “extraordinary and urgent necessity” (art. 86.1). In addition to this formal limit, there are also material restrictions: “It shall not affect the arrangement of the basic institutions of the State, the rights, duties and freedoms of the citizens regulated in Title I, the regime of the Autonomous Communities nor the General Electoral Law”.
This legal instrument in the hands of the Executive has found its justification in the development of the welfare state and in the need to respond immediately to circumstances that could not have been foreseen in advance —to which the requirement of an “extraordinary necessity” refers— and that demand the adoption of normative provisions of legal scope without waiting for approval through the legislative procedure, including the very “urgent procedure for the parliamentary processing of laws” (Constitutional Court rulings 31/2011, 137/2011, 100/2012 and many others) —hence the term “urgent necessity.”
“This legal instrument in the hands of the Executive has found its footing in the development of the welfare state”
Once approved by the Government, the D-L has a limited temporal validity, for the CE (art. 86.2) requires it to be brought before the Congress of Deputies for debate and a full vote within thirty days of its promulgation. If the D-L is validated by the Congress it acquires indefin ite validity; otherwise, it is repealed. In other words, it loses validity, but that does not render it an invalid norm and, indeed, it could continue to have consequences after its repeal.
When the Congress has been dissolved, the power to validate the D-L falls to its Permanent Deputation (art. 78.2 CE), which assumes it not by delegation from the Plenary, but by virtue of a direct constitutional attribution and to the extent that, according to the Congress’s Rules, “the Permanent Deputation may, where appropriate, process as laws projects by the urgency procedure the Decree-Laws issued by the Government during inter-legislative periods” (art. 151.5). Moreover, the validation vote may take place after the general elections and without the new Congress having been constituted (for example, on June 23, 1993 five decree-laws were validated when elections had been held on June 6 and the fifth legislature’s constituent session was held on June 29).
Regarding the Permanent Deputation, it mirrors the composition of the Plenum, but it is not an exact political copy of it, and currently, by Agreement of the Bureau on November 3, 2023, it is composed of the chamber’s president and 68 other members with the following distribution: 27 from the People’s Party Parliamentary Group, 24 from the Socialist Parliamentary Group, 6 from the VOX Parliamentary Group, 6 from the Plurinational SUMAR Parliamentary Group, 1 from the Republican Parliamentary Group, 1 from the Junts per Catalunya Parliamentary Group, 1 from the Euskal Herria Bildu Parliamentary Group, 1 from the Basque EAJ-PNV Parliamentary Group and 1 from the Mixed Parliamentary Group.
According to this composition, it is possible that majorities different from those reflected in the Chamber’s Plenum may form in the Permanent Deputation, but that possible result is merely the consequence of the organization and functioning of our parliamentary system, i.e., of the constitutional rules that regulate it.
“Different majorities may form in the Permanent Deputation than those reflected in the Chamber’s Plenum”
According to these constitutional rules, nothing prevents a particular government initiative, whether a bill or a decree-law, that has not been accepted by the Congress from being presented again during the legislative term, either with the same content or with a substantially similar one, to see if what was previously rejected by the Congress is later approved. One may agree or disagree with such a political strategy, but the possible reproach of that kind has no legal-constitutional consequences.
And just as the content of a decree-law that has not been convalidated by the Plenum of the Congress and, as a consequence, has been repealed, can form part of the body of a new decree-law later submitted for validation, the same may be concluded when the second attempt at validation is presented before the Permanent Deputation after being rejected by the Plenum: as already noted, the Permanent Deputation, with the composition fixed at the start of the legislature, exercises its functions by direct mandate of the Constitution and is not a delegated body of the Plenum that must simply adhere to what it has said.
As is obvious, that the Permanent Deputation validates a D-L does not prevent it from being challenged before the Constitutional Court, either through a petition brought by those entitled to do so or by a judicial body through a question of unconstitutionality, but, in my view, the Constitutional Court’s review must be limited to verifying the Government’s compliance with the formal and material requirements set forth above: that it was adopted under a situation of extraordinary and urgent necessity and that it does not affect matters prohibited by the Constitution, and this without the legitimate political reproach that may be directed at the method used to validate the decree-law implying any unconstitutionality.
“Constitutional review must be limited to verifying the government’s compliance with the formal and material requirements”
It is well known that not everything politically possible is constitutionally valid, and also that what is constitutionally valid does not require the applause of all or the majority of the political community, which, if appropriate, can promote the constitutional reforms it deems appropriate.
