The Spanish Government: Powers, Controls, and the Council of State
VII. The Control of the Acts of Government
1. General Distinction Between Political and Administrative Acts:
We distinguish between political acts, characterized by freedom and therefore subject only to the political control of Parliament, and administrative acts typical of French law. Under Spanish law, this distinction is covered in the Law Governing Contentious Administrative Jurisdiction of 1956. This law excluded from judicial control issues arising in connection with the political acts of the Government, such as those involving the defense of national territory, international relations, and internal security in the command and military organization.
The adoption of the Constitution sparked controversy surrounding the permanence of the political act exemption from judicial review. Article 9.1 of the Spanish Constitution states that all government actions should be subject to the Constitution and other legislation. This raises questions about the validity of Article 97, which points out that the executive and regulatory powers must be exercised in accordance with the Constitution and laws, but doesn’t explicitly mention other government functions.
A restrictive interpretation of what constitutes a political act is necessary, admitting only jurisdictional exemption as provided under the law. The Constitutional Court upholds the existence of acts of government not subject to administrative law, such as those concerning relations with other constitutional bodies exempt from judicial control. However, this view is not consistently maintained by jurisprudence.
The Government Act seeks to legally limit the Government’s action, subjecting all its actions to judicial review. Article 97.1 of this law interprets the Spanish Constitution to mean that the Government is subject to the Constitution in all its actions, aligning legislative criteria with the rule of law.
2. Types of Control:
The Government’s actions are subject to two types of control:
– Political Control: All acts and omissions of the Government are subject to the political control of Parliament.
– Judicial Control: This control may correspond to the ordinary courts or the Constitutional Court:
* 1. Control by Ordinary Courts: The Law of the Government (LGO) states that the Government’s actions can be challenged before the administrative courts in accordance with the provisions of its governing statute. However, control does not always fall under the jurisdiction of administrative courts. Other courts are competent in matters excluded by the Law of Administrative Jurisdiction, such as civil, criminal, and social issues, disciplinary actions brought before military courts, conflicts of jurisdiction between the Courts and the Public Administration, and conflicts of authority between organs of a single authority. Therefore, the control of administrative courts should complement the control exercised by civil, criminal, or labor courts, ensuring that all aspects of government action are subject to legal scrutiny.
* 2. Review by the Constitutional Court: The Government’s action can be challenged before the Constitutional Court as set forth in the Organic Law of the Constitutional Court (OLCC). The forms of challenge include:
– Constitutional complaint against Royal Decree-laws and royal decrees-laws adopted by the Government as statutes having the force of law.
– Appeal for judicial review in cases of violation of fundamental rights and public freedoms recognized in Articles 14 to 29 of the Constitution and conscientious objection under the jurisdiction of Article 30.2.
– Conflicts arising between the State and the Autonomous Communities and those raised with other constitutional organs of the State.
VIII. The State Council (Article 107 of the Spanish Constitution)
The Council of State is the supreme advisory body to the Government, regulated by the Organic Law of the Council of State (LOCE).
– Nature:
The Constitution establishes the Council of State as the supreme advisory body to the Government, emphasizing its role as a relevant state body serving the constitutional principle of the rule of law. However, its scope extends beyond a purely advisory role. It functions as an advisory body to the government, maintaining organizational and functional autonomy, guaranteed objectivity, and independence, enabling it to carry out its work beyond mere consultation.
– Features:
* 1. Supreme Advisory Body: The term “supreme” signifies that it is the primary advisory body, sharing this role with the Council of Fiscal and Financial Policy.
* 2. Centralized Body: It has jurisdiction over the entire country.
* 3. Not Part of Active Management: It provides advice but does not participate in the direct execution of government policies.
* 4. Organic, Functional, and Budgetary Autonomy: This ensures its independence and ability to operate effectively.
* 5. Independence from the Government: This allows for objective and impartial advice.
* 6. Guarantee of Legal Interest and Objectivity: Its intervention provides a significant safeguard for legal interests and ensures objectivity in government decision-making.
– Membership:
* 1. President: Freely appointed by Royal Decree made in the Council of Ministers and endorsed by its President, chosen from among jurists of prestige and experience.
* 2. Directors:
– Permanent Directors: Appointed by Royal Decree, holding positions such as Minister, President, or member of the Executive Councils of the Autonomous Communities, as outlined in Article 7 of the LOCE. They remain in office while holding these positions.
– Ex Officio Directors: Hold positions specified in Article 8 of the LOCE, such as Director of the Spanish Royal Academy or the Attorney General. They retain their status as Directors while holding these positions.
– Elected Directors: Ten members appointed by Royal Decree for four years, as outlined in Article 9 of the LOCE. These may include Deputies, Senators, Judges of the Constitutional Court, or the Ombudsman.
* 3. Secretary General: Appointed by Royal Decree from among the Senior Counsel, based on a proposal from the Permanent Commission approved by the House.
– Working Bodies:
The Council of State operates through the Plenary, the Standing Committee, and Sections. The Plenary comprises the President, the Permanent Board, ex officio and elected members, and the Secretary General. The Chairman and other members of the Government may attend meetings and provide reports as needed. The Standing Committee consists of the Chairman, Permanent Directors, and the Secretary General. Sections, numbering eight or more, are composed of a Permanent Chief Executive as Chairman, a Senior Clerk, and the necessary lawyers, depending on the case’s complexity or the number of queries.
– Responsibilities:
The Council of State provides opinions on matters brought to its attention by the Government, its members, or the autonomous communities through their chairmen. The Plenary or Standing Committee can also raise proposals to the Government on any matter arising from its functions and experience. The Council’s advice is not binding unless otherwise stipulated by law. Reports reviewed by the Plenary cannot be referred to any other body. In cases requiring mandatory consultation and where the Minister disagrees with the Council’s opinion, the matter must be resolved by the Council of Ministers. Provisions and resolutions on matters reported by the Council should explicitly mention whether they are in accordance with the Council’s advice or deviate from it.