Legislative Decrees: A Guide to Delegated Legislation

Legislative Decrees

According to Article 85 of the Spanish Constitution, legislative decrees are government regulations containing delegated legislation. For the government to issue a legislative decree, Parliament must authorize it through a law delegating the exercise of legislative power.

The Constitution permits the delegation of rule-making power, but only under specific circumstances and limitations. The government exercises delegated legislative power within the bounds authorized by Parliament.

Classes of Delegation

There are two classes of delegation according to their intention:

• Basic Law:

  This type of delegation aims to empower the government to create a new text of articles. Basic laws cannot be approved by Commission. They also cannot, under any circumstances, authorize amendments to the framework law or grant the power to make rules retrospectively. Basic laws precisely define the purpose and scope of legislative delegation, along with the principles and standards to be followed in its exercise.

• Ordinary Law:

  This type of delegation involves the government consolidating existing legal texts. In this case, the delegation law determines the regulatory domain and the delegation's content.

Requirements for Legislative Delegation

Legislative delegation requires the following:

• The delegation of legislative power must be made through a law, whether ordinary or basic.
• The delegation must be explicit; implicit delegations are not valid.
• The delegation must be to the government, not to another state organ.
• The delegation must be for a specific subject matter.
• The delegation must establish a defined timeframe for its exercise.
• Once the legislative measure is used and enacted, the delegation is exhausted.
• When a bill or amendment contradicts a valid legislative delegation, the Government can oppose its processing (implied repeal). If it is an express revocation: Parliament can repeal the delegation granted to the Government through a law.

Ultra Vires Decrees

The Constitutional Court (TC) has acknowledged the possibility of dual control over legislative decrees: by ordinary courts and the TC.

Legislative decrees exceeding the delegated authority (ultra vires legislative decrees) or containing any other vice violate the Constitution. The TC has jurisdiction to try such decrees.

In addition to exceeding the legislative delegation, ordinary courts can also judge legislative decrees. Therefore, it is up to the ordinary judge not to apply the legislative decree in instances where the delegation has been exceeded.