The Government’s decision to re-approve, through separate Royal Decree-laws, housing measures that had only a few days earlier been rejected by the Plenary of the Congress, in order to submit them now to the validation of the Permanent Deputation after the dissolution of the Cortes, raises a constitutional question of considerable interest. Not so much because the Permanent Deputation lacks the power to validate decree-laws — it does possess it, unequivocally — but because it compels us to ask how far the Government may go in using a legislative power that the Constitution frames as extraordinary.
It is worth starting from the indisputable. Article 78.2 of the Constitution states that, once the Chambers are dissolved or their term has expired, the Permanent Deputations assume the powers that correspond to those Chambers, in accordance, among other provisions, with Article 86 of the Constitution. The Congress’ Rules confirm this attribution. There is therefore no constitutional vacuum: once the Congress is dissolved, its Permanent Deputation can validate or derogate a decree-law.
We do not lack precedents on this matter. For example, in January 2000, after the dissolution of the Cortes, José María Aznar’s Government approved Royal Decree-law 1/2000, regarding certain measures to improve the family protection aspect of Social Security, which was subsequently validated by the Permanent Deputation. For the purposes relevant here, this precedent shows that the Permanent Deputation can perform that validation function, but little more: at that time, unlike now, there had been no prior formal ruling by the Plenary rejecting that regulation.
More striking is what happened in 2018-2019. The Government approved in December 2018 Royal Decree-law 21/2018, containing urgent measures in housing and rental matters, whose validation was rejected by the Plenary of the Congress in January 2019. In March, Royal Decree-law 7/2019, again on housing and rental matters, was approved; with the Cortes already dissolved, it was validated by the Permanent Deputation.
“The Government approved in December 2018 Royal Decree-law 21/2018, on urgent measures in housing and rental matters, whose validation was rejected by the Plenary of the Congress.” The similarity with the current situation is evident, although it would be naïve to ignore important differences: at that time (2018-2019) several weeks elapsed between one decree-law and the next; moreover, there were substantial modifications that allowed, through renewed political negotiation, to garner more parliamentary support. By contrast, in the present case only a few days have passed between the Plenary’s rejection and the approval of the new decree-laws, and a particularly relevant circumstance also arises: the proportional reduction of the Congress’ 350 members to the 69 of its Permanent Deputation alters the parliamentary arithmetic, which in principle could allow at least one decree to secure a majority that it did not obtain before the Plenary, given that the votes of Junts deputies are no longer strictly indispensable.
On the other hand, it must be noted that Royal Decree-law 7/2019 was subject to review by the Constitutional Court, which in its Judgment 14/2020 declared two of its provisions unconstitutional, dismissing the rest of the appeal. However, it is worth not attributing to that ruling more than what it says: the appeal of unconstitutionality did not contend that re-approving a decree-law on a matter previously rejected constituted an evasion of the Congress’ will. The Court, simply, did not resolve the question now under discussion.
That is why the question we pose at this moment (Are we facing constitutional fraud?) is indeed pertinent. To answer it, I believe that, first, it is useful to warn that the use of that term (fraud) must be exercised with utmost caution. Fraud requires that a perfectly valid norm be used to obtain a result that is prohibited or contrary to the legal order. And there is no express prohibition in the Constitution against the Government re-regulating by decree-law a matter that had already been regulated in a prior decree, subsequently repealed by the Congress.
“The use of that expression (fraud) must be done with great caution. Fraud requires that a perfectly valid norm be used to achieve a result prohibited or contrary to the order.”
But that we cannot simply assert the existence of constitutional fraud does not mean the constitutional problem disappears. In this regard, Article 86 of the Constitution assigns the Government an exceptional legislative power for situations of extraordinary and urgent need, immediately counterbalanced by the requirement that the Congress pronounce on the validation or repeal of the decree-law. It is not a mere formality. It is the mechanism by which the body that directly represents the citizens exercises control over provisional legislation adopted by the Executive. Well then, in the case at hand, that control has already taken place: the Plenary of the Congress has voted and repealed the decree-laws whose content is now reproduced to a large extent.
From this point, it should be noted, secondly, that the Permanent Deputation is not a second instance to whom one can appeal to repeat a vote that was lost before the Plenary. It is an organ that serves parliamentary continuity and to which the Constitution assigns specific functions precisely to prevent dissolution from leaving the Parliament without the capacity to respond.
That its majority differs from the Plenary’s does not, of course, constitute any irregularity. It is a consequence of its proportional composition. The problem would arise if such a difference were used deliberately to obtain a different outcome in a new vote on a norm substantially identical to the one already rejected by the Plenary, since that would amount to nothing more than instrumentalization of the Permanent Deputation’s powers to neutralize a decision that the Plenary has just adopted.
“The problem would arise if that difference were used deliberately to obtain a different outcome in a new vote on a norm substantially identical to the one already rejected by the Plenary.”
The key question, therefore, is to analyze carefully the content of the newly approved decree-laws by the Government. If, as seems likely, they retain much of the content of the earlier ones, albeit with some modifications and new measures, it will be difficult to dispel doubts about the existence of constitutional fraud. And in any case, it will also be necessary to scrutinize whether the extraordinary and urgent need has been sufficiently justified. If relevant, the Constitutional Court will have to decide.
It suffices to recall, finally, that the rule of law does not consist merely of finding a norm that empowers every decision. It also requires respecting the function that norm plays within the constitutional system. And when a government’s exceptional legislative power is pitted against the Congress’s oversight, that demand must be particularly stringent. In the end, it is our form of parliamentary government that is at stake, and, ultimately, our own democracy.
