July 25, 2021

The Government's request to the Council of State on the appurtenances reactivates a commission without use since 2011

The Government's request to the Council of State on the appurtenances reactivates a commission without use since 2011

The commission that the Government has entrusted to the State Council to prepare a proposal for limited reform of the Constitution to limit the measurement of the members of the Executive, deputies and senators has reactivated a commission of this advisory body of the Executive that remained in disuse since 2011.

For the first time in the last seven years, this past Thursday the Plenary of the State Council appointed the eight members of the study commission that, under the direction of the president of the agency, María Teresa Fernández de la Vega, will prepare the requested report by the Government and others who could commission it.

It was the Government of José Luis Rodríguez Zapatero who, in 2004, as soon as he came to power, reformed the law to allow the Supreme Executive's advisory body to draw up legislative or constitutional reform proposals, at the Government's request.

The Executive of Zapatero resorted to this formula up to eight times. The first, to ask him to study the feasibility of reforming some specific aspects of the Magna Carta referring to the inclusion of the official name of the Autonomous Communities in the Constitution, the reform of the Senate, the elimination of male prevalence in succession to the Crown and the integration of Spain in the European Union.

In addition to this report, which did not materialize in a reform of the Constitution, the State Council published other studies, at the request of the Government, on aspects as varied as the possibilities of action against advertisements of prostitution in the media or on the proposals for modification of the General Electoral System.


The Government of Mariano Rajoy not once resorted to the Council of State to entrust the study or preparation of a legislative proposal or constitutional reform. The 'popular' only resorted to this advisory body to ask for the opinions that are mandatory, although not binding, to be able to approve a bill.

The commission of studies constituted last Thursday is composed of Landelino Lavilla, Miguel Rodríguez-Piñero and Bravo-Ferrer, Miguel Herrero Rodríguez de Miñón, Fernando Ledesma, Consuelo Castro, Yolanda Gómez, Manuel José Silva and Juan Antonio Ortega and Díaz-Ambrona.

This group of experts has just one month to prepare a proposal for reform of the appraisals, which must ultimately approve the Plenary of the institution. It is the term given by the Government and that, today, the Council of State is able to comply, so that at the end of October or the first of November the report reaches the Executive.

However, if the given term falls short due to the complexity of the matter, the advisory body may, under Article 133 of its regulations, request the Executive to grant it more time.

The mandate of the Executive is that it is the State Council that proposes in what sense to modify articles 71.3 and 102.1 of the Constitution, which are those that refer to the jurisdiction of the members of the Government, deputies and senators, consisting in that the competent court to investigate them is the Supreme Court.

The Government has only indicated to the Council of State that its will is to restrict the appraisal to the "strict exercise" of its functions as public office, excluding those crimes associated with corruption. The Executive intends with this change to end with the prevailing feeling among the citizens that the forum of ministers and parliamentarians is a privilege.

But this idea of ​​easy verbal formulation is not so simple to materialize in the legal plane, because it could require specifying one by one the crimes that would not be covered by the appraisal, which does not correspond to be specified in the Constitution with that degree of detail.

The Council of State could suggest in its report what laws and in what sense it would be advisable to modify them so that they adapt to the new wording of the Constitution.

Once the Government submits to the Cortes its proposal for a limited reform of the Constitution to limit the appraisals, it is possible to process this change in just 60 days. The Executive, in addition, has assumed with normality the possibility that the limited reform of the Magna Carta will be submitted to a referendum. Only if 10 percent of the deputies ask for it – and Unidos Podemos has already advanced this intention – it is obligatory to proceed with this consultation.


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