Social Welfare in Spain: A Constitutional and Regional Perspective
3. Regulating the Constitutional Problems
- The first place in the constitutional enumeration of groups does not protect an exhaustive list of sectors or issues to address. This is an open relationship, so that other groups not mentioned are being addressed by the authorities. For example, drug users may be included in the general protection of the right to health.
- Secondly, whether Article 50 could be interpreted as pointing to an overall concept of Social Security Services (SSS): there are writers who claim that this article seems to tentatively point to a global concept of SSS, meaning that it is clear the obligation of public authorities to create a system of SSS. Welfare must be achieved by addressing the specific problems and specific issues are listed by way of example and not a valued form.
- Article 50, in its only reference, is explicitly to SSS, but it is not to characterize them as a system or public system. It only refers to services for seniors.
- Nor does it mention charities, though it could be considered partly included in the right of establishment which provides, inter alia, a private charity.
- Thirdly, if the groups listed as protected in the Constitution therefore have automatic protection: Chapter 3 from Part 1 provides guidelines so inspiring but not conclusively imply a commitment. For a protection, a specific law is needed as resulting from Article 53.3.
- The only exception to the groups of children, elderly, etc. is that of the prisoners or detainees themselves are subject to special protection and this refers to Article 53.2.
- Fourthly, if the Constitution implements a universal model of Social Insurance, and if social services are integrated or not in it: it is known risks or contingencies that are the subject of contributory Social Insurance and needs, object of SSS. So if we stick to the wording of Article 41, SSS seem to join Social Security, introduced in Spain on a universal health care model or Social Insurance, existing in other countries.
- But the truth is that is not the case. The Social Insurance in Spain today reflects a mixed model because for some contingencies the Social Insurance is universal (non-contributory pensions and health care) and for other contingencies, Social Security recipients are contributory and are for a prior financial contribution; e.g., retirement pension, widows, orphans, etc.
- Therefore, the SSS both could be part of Social Security as a welfare model, as another form of SSS social protection system independent and parallel, unregulated in it.
- The Constitution is a framework law that does not have specific questions to be regulated by ordinary laws or regional, as this has been done with the laws of SSS. You can say that in Spain there is a welfare system that is the Social Insurance and, simultaneously, a non-contributory SSS system for all citizens, most recognized as a right for all in a social state.
4. The Distribution of Responsibilities: Central Government and Welfare
The Constitution introduces an important new development to establish the rule of the Autonomous Regions. Compared with the unitary, centralized state above, it governs the territorial organization of the State Municipalities, Provinces and Autonomous Communities.
Highlight two items: Article 148, which lists the tasks that may take the Autonomous Communities, and Article 149, which includes the exclusive powers of the state. The Constitution expressly confers no powers on the SSS, or the central power or the Autonomous Communities.
This causes the following problems or consequences:
- As SSS is not included in the relation of Article 149, in principle, we can say that they are not exclusive jurisdiction of the state.
- Neither is it expressly contained in Article 148, which lists the powers assumed by the Autonomous Communities, and could be considered as a first problem. SSS may be powers of the Autonomous Communities when speaking of Social Welfare or be assumed by the Statutes of Autonomy, not being subject to those reserved to the State under Article 149.
- Third, the powers may be assumed by the Autonomous Communities are not, explicitly, in their constitutions, are maintained in the state competition.
Competencies are the State Administration to ensure the equality of all Spanish, immigration, assumes that the Ministry of Labor and Social, political refugees and issues relating to penal institutions, i.e., the sector of prisoners or former prisoners who assumed the Ministry of Justice and the Interior.
Also, the basic legislation and economic system of Social Security, labor law and health.
When not to place the Constitution, specifically, skills in SSS or the Central or the Autonomous power led many authors to consider the SSS included in Social Security. But that has not happened.
5. Powers of the Autonomous Regions
According to the Constitution, the Autonomous Communities may assume the following responsibilities: those referred to in Article 148 in relation to Social Welfare, some as listed in implementing Article 149 of the Social Security and skills not expressly assigned to the State.
Social Assistance is provided in a public non-contributory scheme and includes the SSS in its broadest sense. This interpretation is that the commissions were mixed and devolution to the Autonomous Communities and other laws.
All agree Statutes attention to these matters and have taken this matter, although under different names.
For example, the Statute of Andalusia (1982) has exclusive protection and child custody, care charitable foundations carry out their functions in Andalusia, activities and services for young and old, legislative development and implementation. Therefore, shared authority: social security and workplace.
In addition to the Statute of Autonomy, the Autonomous Communities have regulated the SSS in specific laws.