The Decree-Law is a legislative provision issued by the Government in case of extraordinary and urgent need, without being able to deal with issues expressly excluded in the Constitution. Its character is provisional.
This Decree-Law is a legislative mechanism available to the Government to generate regulations without having to follow the ordinary legislative procedure that would lead to the approval of a law. In other words, this rule is not approved by the Cortes Generales. It has a lower rank than the laws.
Each country contains a different regulation and different types on this rule, but the use of the decree for actions of necessity and extreme urgency seems to be widespread. In some countries it is known as an emergency decree.
For this reason, so that the Government does not abuse this power to dictate regulations, it is restricted to extraordinary and urgent situations without certain issues being dealt with. In addition, these decrees are born with a marked time limit.
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What is its purpose? They allow a situation that needs urgent regulation to be legislated much more quickly, since decrees of this type do not have the same approval procedure as a law.
Characteristics of the Decree-Law
The main characteristics that define this figure are:
- This type of rule can only be controlled by the Constitutional Court.
- It is an exceptional figure within the types of laws. It can only be issued in appraised cases.
- For it to remain in force, Parliament has to approve it.
- It cannot be used to dictate ordinary regulations or replace Parliament in its legislative function.
- The situation that the Government must find itself in to enact this Decree-Law must be unusual or anomalous and must be a necessity that arises with no way of having foreseen it.
- The situation must also be urgent. This means that immediate legislative measures are necessary. How is this urgency measured? If this measure had not been taken, serious damage to public interests would have been caused. For example, this was an element widely used in the COVID-19 pandemic as it was a situation of extraordinary and urgent need.
- There must be proportionality between the provisions and the situation for which they are dictated.
- The terms for its approval are shorter than for passing laws.
- You must be motivated.
In addition to the limits on the situation being of urgent need and extraordinary, it is not possible to legislate on certain matters:
- Rules cannot be dictated on the ordering of the basic institutions of the State.
- On the rights, duties and freedoms of citizens.
- On the regime of the autonomous communities.
- No rules can be dictated on the general electoral law.
- Fundamental rights cannot be violated.
We can see how, in Spain, the procedure for approval of this Decree-Law follows, which is different from the normal process of approval of a law:
- It must be done and approved by the Government itself.
- Then it must go through Parliament’s review and has to approve it so that it remains in force.
- Eventually, it can be processed as a bill, fully involving the general courts. In other words, they will not only have to stick to approving or not the rule drawn up by the Government, but they will be able to make modifications and contributions to the legal text.