Government Regulatory Acts and Legislative Power

Unit 5: Government Regulatory Acts and the Range of Law

Rules with the Force of Law from Government Action

Characterization of Legislative Power Exercised by the Government:

Rules possessing the force of law originate from the government through specific instruments:

• The Decree-Law.
• The Legislative Decree.

A rule having the force of law is a government law, although the primary source of laws is the central Parliament, regional parliaments, or autonomous parliaments. A rule cannot be considered a law if it does not originate from the body authorized to develop such standards.

Necessity for Government Legislative Capacity:

The process of enacting a law often requires a long duration, which can sometimes render the resulting law dysfunctional or inadequate for its intended purpose in certain subjects or matters.

To avoid these dysfunctions, the objective is to ensure the adequacy of the standard. The legal order anticipates that the government may exercise legislative capacity, reaching a situation similar to Parliament in adopting standards with the force of law.

However, the courts must retain the ability to control the outcome of the government's legislative activity. This necessitates control mechanisms, ensuring the government is held accountable by the owner of the legislative power.

What is being discussed here are regulations having the force of law, specifically the Decree-Law and the Legislative Decree. These are considered minor ordinary laws; they share the same legal status. Any rule that can repeal ordinary laws can also be repealed by ordinary legislation.

Decree-Law

To discuss the Decree-Law, we refer to Article 86 of the Spanish Constitution (EC):

"1. In cases of extraordinary and urgent need, the Government may issue temporary legislative provisions in the form of decree-laws. These may not affect the ordering of the basic state institutions, the rights, duties, and freedoms of citizens contained in Title I, the system of Autonomous Communities, or the general electoral law.

2. Decree-Laws must be immediately submitted for debate and voting by the entire House of Representatives, convened for this purpose if not in session, within 30 days after their enactment. Congress must act within that period specifically on their ratification or repeal, for which the Regulation will establish a special summary procedure.

3. During the period established in the previous section, the Cortes may process bills using the emergency procedure."

The primary situation enabling the government to issue a decree-law is one of extraordinary and urgent necessity, such as a public disaster or epidemic, if the situation is ongoing.