The Constitutional Court has endorsed that the Government is not obliged to deliver to Congress – and therefore, to the opposition – the documents and reports that it uses for the preparation and approval of a decree law. This doctrine appears in the sentence approved in the plenary session that the guarantee body held this week and in which it supported the fact that the former president of Congress Meritxell Batet rejected the PP’s request for the opinion prepared by the Council of State to be delivered. on Decree Law 36/2020, of December 30, which, among other issues, established rules on the administration and control of European funds related to the consequences of the health emergency. The PP then demanded the report considering that it was very critical of the Government and that it was being hidden in order to deprive the opposition of “the information necessary to form an opinion before casting their vote.”
The PP—led at that time by Pablo Casado—sent two letters to the Congress Board denouncing the alleged violation of its parliamentary rights for not having been able to rely on the opinion of the Council of State on the occasion of the approval of the decree law or in the moment when its validation was voted. The Constitutional Court has decided, however, that there was no such violation of rights either at the time of validation of the decree law or later during its processing as a bill. The resolution was approved by six votes to four, the first from the progressive group and the second from the conservative bloc. Judge Juan Carlos Campo, former Minister of Justice, abstained from participating in the vote.
The ruling – for which Judge Laura Díez, from the progressive sector of the court, was the speaker – estimates that the negative response of the president and the Congress Board contained an “adequate and sufficient” basis, which represented “a legally possible interpretation of the parliamentary regulations applicable to the case.” And this is because “neither the Constitution nor the regulations of Congress expressly impose on the Government the obligation to send the background information corresponding to the procedure for preparing a Royal Decree-Law.”
Nor when the decree is processed as a bill
The ruling of the Constitutional Court goes even one step further and considers that it is not mandatory to deliver reports and opinions to the parliamentary groups when the decree law in question has been validated and its processing as a bill begins. To claim this, the PP argued that both the Constitution and the chamber’s regulations do refer to the fact that it is required that the Executive deliver to Congress “the background information” to rule on the text being debated. In this regard, the court of guarantees emphasizes that “neither the Constitution nor the Regulations of Congress establish that, when it is processed as a bill, the royal decree law becomes or is transformed into a bill, thereby being subject to the requirements of these and, therefore, the need for submission by the Government of the ‘necessary background’.”
The judges Ricardo Enríquez, Concepción Espejel, Enrique Arnaldo and César Tolosa – from the conservative sector of the court – have voted against the sentence because although they believe that the rejection of the report could have been accepted on the occasion of the validation of the decree law, then when it was processed As a bill, it had to be delivered to the parliamentary groups. These magistrates consider it “inexcusable” that the deputies could count on the opinion of the Council of State, as it was necessary to pronounce with “full knowledge” of the problem involved and “under the same conditions as the Government.” However, the appellant group did not have this report “to help form its opinion, even in the form of amendments to the text”, which violated its right into office their rights to political participation, which – the dissenting vote states – should have led “to the granting of the protection” requested from the court.
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