The president of the Government, Pedro Sánchez, declared the state of alarm in March 2020 without the support of the State Bar. In a response sent to the Transparency Council, the Ministry of the Presidency reveals that in the file of that decree “there are no reports evacuated by advisory bodies of the Government or by the State Lawyers”.
According to La Moncloa, the Executive acted without the guidance of the State legal body because “since they are royal decrees that exceptionally declare a state of alarm”, the procedure for drafting laws provided for in the Government Law is not applicable. “It is a competence attributed to the Government in its capacity as a constitutional body, not
higher body of the Administration, “he argues, underlining that” the declaration of a state of alarm has the form of a decree agreed in the Council of Ministers, but it is not the exercise of the regulatory power to enforce laws.
No reason to doubt
The lawyers consulted by this newspaper are divided between two theses in response to this answer: that the Government did not actually consult with the Legal Profession, this being yet another example of the “botch” that was the state of alarm in March, and that there was a consultation but only verbally because the institution that directs Consuelo Castro Rey anticipated a negative report. In one way or another, and despite the legal justifications that the Executive wields now, La Moncloa should have considered it a mistake to suspend rights and freedoms without having the support of the Lawyers since it subsequently amended its procedure. Thus, it required the report of this institution before declaring the states of alarm in Madrid -on October 9, 2020- and throughout the national territory -on October 25 of that same year-. And this despite the fact that the suspension of rights was much less than in March. The same thing happened with the extensions of the state of alarm. In the record of the decree there is no evidence that the Lawyers issued an opinion on the first, but it did from the second onwards.
This reply from the Government to Transparency is produced after a citizen requested a copy of the drafts and “all reports evacuees »used to declare the state of alarm and pass various related decrees. The Executive only sent him some opinions, without indicating why he did not send all of them, which led the individual to file a claim with the Transparency Council. It is then that the Presidency states that “there is no more public information” than the one it had sent and the appeal is archived due to the lack of documentation.
“The claim must be rejected, since the Administration, in statements that this Transparency Council has no reason to doubt, confirms that there are no reports evacuated by advisory bodies of the Government or by the State Lawyers according to the terms requested by the complainant ”, resolves the deputy director general of Transparency, Francisco Javier Amorós. However, it underlines that “could have existed” the technical and legal reports claimed.
Contentious in the Supreme
The revelation of that there are no written opinions of the Legal Profession on the state of alarm in March has significance additional, since Vox and the Executive battle in the Supreme Court for these same opinions. Santiago Abascal’s party claims them and, as it did against the individual, the Presidency tries to close this dispute by delivering some reports and without justifying why it does not send the rest. The Government thus tries to hide from Vox that at least two of the reports that this party requests do not exist. In fact, the Executive has asked the Supreme Court to close the process for “extra-procedural satisfaction” having partially responded to Abascal’s request. Vox, for its part, has presented allegations requesting that the process continue its course as its request has not been fully satisfied. In addition, to the reports of the Lawyers on the declaration of the state of alarm and the first extension, the deputy spokesperson of this group, Macarena Olona, has unsuccessfully demanded the opinion on the de-escalation plan and the six-month extension of the second state alarm.
The Executive does not have it easy because both the Constitution and the Regulations of Congress oblige it to provide the documentation required by the Courts, provided that it is not a matter of special protection. The Magna Carta establishes that the Chambers may collect “the information and assistance they require from the Government and its Departments and from any authorities of the State and the Autonomous Communities”, as part of the fundamental right to exercise representative public office without restriction. In fact, both the lawyers of the Courts and the Prosecutor’s Office have aligned themselves with Vox’s thesis in this case, defending before the Supreme Court that “the fundamental right of a deputy in the exercise of her function is at stake” and recalling the existing precedents in the autonomous sphere. The Supreme Court must now decide which path this dispute will follow.