14.

Government
Constitutional Law I
2024/2025
María Dalli Almiñana
Summary
• Introduction
• Composition
• Formation
• Statute
• Functions
Introduction
• Regulation:
• in Part IV SC
• Very brief regulation, only ten articles: considerable flexibility
• Need for laws to develop the constitutional provisions
• Ley Regímen Jurídico Administrativo del Estado 1957
• Ley Organización de la Administración Central del Estado 1983
• Ley Incompatibilidad de Altos Cargos 1995
• Ley del Gobierno 50/1997
• Ley 3/2015, de 30 de marzo, reguladora del ejercicio del alto cargo de la
Administración General del Estado
• However, main role of the government and of the prime minister of the
government
• Complemented by Part V: the relationship with the chambers
Composition
• Regulation: Article 98.1 SC and Central Organisation of the State
Act
• Main bodies:
• 1. Prime Minister
• 2. Vice-Prime Minister (s)
• 3. Ministers (heads of Ministries)
• 4. Council of Ministers
• When the Government acts as a collegiate body, it acts as the Council of
Ministers
• 5. Secretaries of State
Composition
• Other bodies:
• Delegated commissions:
• The other collegiate governing body together with the Council of Ministers
• Specific functioning delegated by the Council of Ministers
• Other collaboration or support bodies apart from the secretaries:
• General Commission of Secretaries and Subsecretaries of State:
prepares Council of Ministers sessions
• Government Secretariat (secretariado del gobierno): part of the Ministry
of the Prime Minister - administratively supports the Council of Ministers
• Cabinets
Formation
• FIRST step: election of prime minister
• Two ways: ordinary and extraordinary
• A) Ordinary: election of the prime minister by the Congress of
Deputies:
• Regulation in Article 99 SC and 170 to 172 RCD.
• 1) Consultations with the Monarch. After the elections, the Monarch
meets the possible candidates for prime minister
• 2) The Monarch submits a proposal to Congress: the leader with greatest
chance of receiving support from the chamber
Formation
• 3) Investiture vote in Congress: confidence gained if absolute majority in
the first round or, after 48 hours, simple majority in second round
• 4) If the candidate does not receive support, the King proposes another. If
no one gains sufficient support in two months - then new elections called.
• B) Extraordinary: after a motion of censure
• The motion is won by absolute majority by an alternative
candidate
Formation
• SECOND step. The election of the other members of the
government
• Article 100 SC:
• The other members of the Government shall be appointed and
dismissed by the King at the proposal of the Prime Minister.
• It is a discretionary choice by the Prime Minister with a formal
appointment by the King.
Formation
• A government ceases to hold office if:
• A motion of censure is approved
• A motion of confidence is rejected
• A general election is held
• The prime minister resigns or dies
Statute of government members
• Obligations:
• Keep secrets regarding matters which could affect the security of the
state (they do not have to declare - even as witnesses)
• Responsibilities: political, civil, and criminal
• Prerogatives:
• Special jurisdiction of the Supreme Court
• Special procedure for declaring (from home or office)
• Royal prerogative of pardon not applicable
• The accusation of treason, or a crime against the security of the state,
requires support from ¼ of the members of congress and approval by an
absolute majority.
Statute of government members
• Incompatibilities: all of them beyond parliamentary mandate
• Conflict of interests:
• General regime of conflicts of interests of senior officials of the general state
administration
• Senior officials cannot work in private companies affected by decisions made in
past two years
• Access requirements:
• Spanish nationality
• Over 18 years old
• Being entitled to vote and stand in elections
• Not being disqualified by a final court sentence from holding public employment
Functions
• Article 97 SC:
• The Government shall conduct domestic and foreign policy, civil, and
military administration and the defence of the state. It exercises executive
authority and the power of statutory regulations in accordance with the
constitution and law.
• Executive function
• Regulatory power
• Management or government function (addressing the policy of
government)
Executive functions
• Basically, the implementation of legislative norms, which
includes:
• Decision-making on the direction and content of the executive function
• Appointing delegates of regional governments
• Administrating public services such as healthcare, education, and
transport
Executive functions
• Last function of the so-called ‘administrative’ function of the
government as the head of the administration
• Brief mention of the administration:
• Concept: under the direction of the government, it ensures compliance with the
obligations of the state and serves the general interest. It is the executive arm of
the state.
• The administration acts in compliance with the law and has limited
discretionality.
• There are instruments of control (judicial ones and otherwise: such as the
Council of State, Ombudsman, AEPD; and mixed such as the Court of Auditors,
Article 136 SC).
• There are different types: territorial (in regions and provinces); public institutions
(INSS, RTVE…), and others (such as administration of justice, electoral
administration, CGPJ, and CC).
Regulatory powers
• Approval of regulations
• Regarding its relationship with the law, it can be:
• Execution or secondum legem
• Independent or praeter legem
• Urgent execution or contra legem
• Regarding by how much rights of citizens are affected:
• Legal or normative
• Administrative or organisational execution
Regulatory powers
• Who holds regulatory authority?
• Council of Ministers (Royal Decrees)
• Ministers (Ministerial Orders)
• Prime Minister (not explicitly contemplated)
• For their own regulations: Constitutional Court, Cortes Generales,
Congress of Deputies, Senate, CGPJ, legislative assemblies of the
regional governments, etc.
Regulatory powers
• In some circumstances, approving rules with force of law:
• Delegated legislation if Parliament has delegated this function
• Approving decree laws for exceptional and urgent reasons
• The government also plays a role in the law-making by Parliament:
• By submitting bills (legislative initiative)
• By setting the legislative agenda
• By playing a leading role in drafting financial and budget legislation
Government functions
• Including management of:
• Domestic policy
• Foreign policy
• National defence
Government functions
• Management of domestic policy:
• Regarding legislative power:
• Dissolution of chambers
• Legislative initiative
• Budget preparation
• Regarding the electorate: Propose calls for consultative referendums
• Regarding jurisdictional bodies:
• Proposes two members of the Constitutional Court
• Presents complaints of unconstitutionality, challenging provisions of regional states, and
presents a prior appeals regarding unconstitutionality of a treaty
• Appoints the State Attorney General, after hearing the CGPJ
• Regarding regional governments: monitors compliance with obligations and adopts
measures
• Takes the initiative in emergencies and crises
Government functions
• Management of foreign policy:
• Represent the country abroad
• Recognition from other countries, economic, health, military aid, etc.
• Diplomatic representations, protection of displaced nationals
• Conclusion of treaties (some require authorisation from the Courts)
Government functions
• Management of national defence:
• Management of military administration
• Carried out in collaboration with the crown and legislature
• Advised by the National Defence Council
• Management of civil administration:
• Prior to the functioning of the administration: setting priorities, providing
means, and distributing resources
• Management of economic policy
Special mention of the Prime Minister
• Primacy of the prime minister according to the Constitution
• Article 98.2 SC:
• The Prime Minister shall direct the Government’s action and coordinate
the functions of the other members thereof, without prejudice to the
competence and direct responsibility of the latter in the discharge of their
duties.
• Examples:
• King’s consultations regarding relations between government and the
Crown and others (e.g. with candidates for prime ministership)
• Defends a policy in Congress
• Censure motion requires a new candidate for prime minister
• Election campaign focused on candidates
Special mention of the Council of State
• Article 107 SC
• Organic Act 3/1980 on the Council of State.
• Characteristics:
• It is the supreme advisory body of the government
• It issues opinions and reports for the government
• Exclusive authority to provide opinions on certain matters
• It ensures the observance of the Constitution and legal system
• It operates in plenary sessions
• The president is selected from recognised and experienced jurists