The Structure and Functions of Government in Spain

Posted on May 14, 2024 in Law & Jurisprudence

ITEM 13 – The Structure of Government

Principles of the Spanish Government

The structure of the Spanish Government is characterized by three key principles:

1. Principle of Collegiality

The Government operates as a collective body, deliberating and making decisions jointly. This principle, derived from English law, emphasizes the shared responsibility of the Government, as confirmed in Article 108 of the Spanish Constitution.

2. Principle of Management

The Prime Minister holds a prominent position within the Government, acting as more than just a “first among equals.” This is evident in several aspects:

  • The Prime Minister defines the Government’s political agenda and is the sole recipient of the parliamentary investiture vote, signifying parliamentary confidence.
  • The Prime Minister initiates the question of trust, which forms the basis for a vote of no confidence.
  • The Prime Minister assumes significant constitutional and legal functions, both as director and coordinator of the government and through their unique powers.
  • The Prime Minister is the leader of the winning party in the elections.

3. Principle of Competence and Responsibility of Ministers

The Constitution assigns specific competencies to each Minister regarding the affairs of their respective department. This results in the direct responsibility of Ministers for their administration, subject to parliamentary control mechanisms.

ITEM 13 – Staff Members of the Government

The composition of the Government is partly outlined in the Constitution, with Article 98.4 stipulating that a law should regulate the status and incompatibilities of its members. This regulation is found in the LGO (Law of the Government), which highlights the following:

Entry Requirements for Office

  • Spanish nationality
  • Adult age
  • Possession of the right to vote and stand for election
  • Not being disqualified from holding public office by a court of law

Appointment and Removal

The Prime Minister is appointed and removed according to the terms outlined in the Constitution. Other members of the Cabinet are appointed and dismissed by the King, based on the Prime Minister’s proposal.

Substitution

In cases of vacancy, absence, or illness of the Prime Minister, their functions are assumed by the Vice Presidents, following a predetermined order of priority. In the absence of Vice Presidents, Ministers take over based on the order of precedence of their departments. The substitution of Ministers is determined by a Royal Decree issued by the Prime Minister and must be filled by another member of the Government.

Incompatibilities

  • Holding other representative functions, except for the role of deputy or senator
  • Exercising any other public function not derived from their ministerial office
  • Engaging in any professional or commercial activities, except for the administration of personal or family property within specified limits

Staff Proceedings

The Constitution establishes procedural specialties for members of the Government in Article 102:

  • The Prime Minister and other Cabinet members enjoy special privileges regarding criminal responsibility, requiring proceedings before the Criminal Chamber of the Supreme Court.
  • If the charge involves treason or any crime against state security committed in the exercise of their functions, it can only be initiated by one-quarter of the members of Congress and requires approval by a majority thereof.
  • The Royal prerogative of pardon does not apply to any alleged criminal responsibility of Government members.

A statute has been approved for former Prime Ministers, which outlines protocol, provides for a special damages board for them and their relatives, and includes provisions for office expenses, property rentals, state-provided transportation, security services, and free passage on state-owned transport companies. However, no institutional role justifying these expenses is assigned.

ITEM 13 – The Government’s Functions: Governing and Executive

The Government serves as both the governing body of the Public Administration and the executor of the State’s administrative activities, as outlined in Article 97 of the Constitution. This dual role encompasses both political and executive functions.

1. Political Functions

International Relations

The Government directs foreign policy, in some cases endorsing the actions of the King as the High Representative. This includes negotiating treaties that don’t require parliamentary approval, ensuring compliance with existing treaties, and adhering to resolutions of international bodies to which Spain is a party.

Initiative as a Function of Momentum and Political Orientation

  • Presenting the political agenda to Congress during the parliamentary inauguration of the Prime Minister or when seeking a vote of confidence.
  • Initiating legislation by submitting bills to Congress or the Senate.
  • Taking the initiative in constitutional reform.
  • Drafting the State Budget for review, amendment, and approval by the courts.
  • Developing economic planning projects for legislative approval.

Arbitration

  • Proposing consultative referendums on political decisions of special importance.
  • Proposing the calling of elections.
  • Proposing the dissolution of Congress, the Senate, or the Cortes.

In certain instances, the Government exercises arbitration powers with relative independence, not merely endorsing royal acts. This includes:

  • Informing the King of state affairs, with the Prime Minister having the authority to request chairing Council of Ministers meetings.
  • The power to file appeals of unconstitutionality against laws or regulations with the force of law.
  • Raising constitutional conflicts with Congress, the Senate, or the Supreme Judicial Council.
  • Arbitration functions related to Autonomous Communities, including appointing a delegate to oversee state administration in these territories, calling deputies and senators to constitute an assembly for drafting the Statute of Autonomy, controlling the exercise of delegated functions under Section 150.2 after consulting the Council of Ministers, challenging provisions and resolutions adopted by Autonomous Community organs in the Constitutional Court, determining the suspension of challenged provisions or resolutions, addressing conflicts of competence with rules, resolutions, and events, or with the approval or omission of actions, and adopting necessary measures by an absolute majority in the Senate to compel compliance with constitutional or legal obligations by an Autonomous Community.

Functions in Exceptional Situations

  • Declaring a state of alarm or a state of emergency, subject to authorization from the Congress of Deputies.
  • The power to issue decree-laws.

Functions of Defense

The Government’s role in national defense involves coordinating with the King, who holds High Command of the Armed Forces. The declaration of war and peace falls under the King’s jurisdiction, requiring parliamentary approval.

2. Executive or Administrative Functions

As the governing body of the Public Administration, the Government oversees the State’s administrative activities. This role is intertwined with its political function and involves:

  • Exercising statutory authority in accordance with the Constitution and laws, subject to judicial control.
  • Approving legal provisions of lower rank than laws.
  • Approving legislative decrees containing delegated legislation to consolidate legal texts or clarify specific articles.
  • Approving decrees agreed upon in the Council of Ministers for issuance by the King, now referred to as Royal Decrees of the President of the Government, approved by the Ministers.
  • Nominating civil and military officials for appointments conferred by the King.
  • Proposing the right of grace, attributed to the King.
  • Protecting the free exercise of rights and freedoms and guaranteeing security through the Security Forces.
  • Managing public utilities.