Rafael Arenas, 4 August 2021
Jurist, university professor at the Autonomous University of Barcelona and writer. President of Catalan Civil Society (2015-2016)
A few days ago I was reading an article by Jorge San Miguel in which he explained that there were no longer possibilities to reverse the trend towards fragmentation in Spain and proposed as an alternative to an impossible (for the writer) central regulation, cooperation mechanisms between autonomous communities.The article is, I think, important. I had never seen so crudely explained the limitations for the common Spanish project that derive from the evolution of the autonomous state. It seems to me that it is one of the most important issues for the future of our country (and, therefore, for all of us) to which less attention is paid than it should be. I will make an effort so that on my part it is not like that. The first thing we have to do is diagnose the situation; and for that I believe that we must assume that decentralization in Spain has reached a point where it is almost appropriate to better describe the country as a sum of autonomous communities than as a single political entity. I was dealing with it a few months ago (” Confederal Spain ” ) . It’s not really new. 13 years ago I published an entry entitled ” Spain did breakand “in which he explained that the trend towards decentralization that the autonomous state had begun could have no end. Or, rather, that the logical thing is that it would have no end. The inertia of centuries of centralism prevented us from appreciating, even then, that it was the autonomous administration, and not the central one, that governed the most relevant aspects of the lives of citizens, in such a way that, in fact, the really important elections were the regional ones and not the general ones. However, the illusion was maintained that the country continued to function as a unit, without appreciating the profound consequences of fragmentation; but in the last four years two events have significantly changed this perception, and articles such as that of Jorge San Miguel that cited the principle are proof of it.The events I am referring to are the nationalist challenge in Catalonia, which exploded in 2017, and the management of the pandemic that still plagues us. Let’s see it next.
II. Nationalist challenge and pandemic management
With regard to the secessionist challenge, it should surprise us that the most important institutional crisis of Spanish democracy has been settled with a look the other way without having analyzed its causes, its possible consequences and what measures should be adopted in order not to reoccur. place the country in a situation as serious as that experienced in 2017.Let us assume at once that Spanish public officials used the means that the constitutional order had endowed them with to repeal it. Let us not overlook the fact that schools and other public buildings, institutional social networks and not a few police officers actively collaborated in the attempt to repeal the constitution in Catalonia, that the government had to put in place the mechanisms of international diplomacy in order to isolate those who They had declared the independence of Catalonia and that the European Union ruled on what was happening in Spain. Let’s not forget that everyone was waiting for the secession of a part of the national territory to take place with the consequences that this would have,Is the above a minutia or, on the contrary, shows that we should study what structural flaws exist in our constitutional architecture to have reached this situation? We will come back to it later; because here it is enough to state that an autonomous administration was in a position to challenge the state and that, although it did not achieve its purpose, there was effective damage to Spain’s reputation and the country had to use resources , domestic and international, that could be dedicated to something else to oppose the actions of some administrations that were obliged to act in accordance with the provisions of the constitution and the statute of autonomy .The secessionist challenge in Catalonia should have already warned us that the degree of decentralization in Spain was surely greater than what was generally perceived; but it has been the pandemic that has highlighted it most starkly. The fragmentation of the health system has led to the measures adopted varying from autonomous community to autonomous community, and not only (or not so much) because health conditions vary, but also because of political differences between one and another government. I will not insist on it here, because I was already dealing with it in the April entry that I was commenting on earlier (“Confederal Spain”). The last few months have deepened this perception of fragmentation, because political dynamics have led tothe government opposes the opposition taking advantage of the fact that the Community of Madrid is governed by the PP; so that sometimes it seems that there is a confrontation between Madrid and Spain that some are already doing well to, in some way, “normalize” the confrontation between Catalonia and the state as a whole . The presidents of the autonomous communities have realized the power they treasure and now use it to carry out a complex policy in which, for example, the confrontation between the two autonomous communities is fueled ( the proposal of Ximo Puig, president of Valencia, to reform the taxation in Madrid , for example).In recent months, the perception of fragmentation is increasingly evident, no longer limited to the Basque Country or Catalonia, but with the prominent participation of many other autonomous communities, which seem to have assumed what I was saying at the beginning, that the state is already more a sum of regional entities than a country of citizens . I will not insist on it, because in the entry “Confederal Spain” you can find more examples.
III. A common project?
The above is a mere description of the current situation. The next question is whether we want to continue advancing fragmentation or not. Of course, either option is legitimate. Right now, in Spain there is already a very important part of the Congress that supports without fissures or the fragmentation of Spain (the nationalists, 35 deputies out of a total of 350) or the self-determination of the autonomous communities (of all or some; would include Podemos and its convergences, which add another 35 seats). It is clear that both will not be particularly concerned about what I have described before; but the rest? What do you thing?My approach is that, on the one hand, we should not be in a situation in which the administration of an autonomous community has the capacity to create a crisis as serious as the one experienced in 2017. On the other hand, I believe that decentralization has reached a point where it has become inefficient . That is, it benefits only the political elites and those who are related to them, but it does not bring advantages, but disadvantages, to citizens. I will deal with both dimensions – which are related – below.As for the nationalist challenge, as I have advanced, I think it is unwise to have left what happened in 2017 without any evaluation. It is shocking at a time when any bureaucratic management is accompanied by the corresponding assessment survey that something like what happened in 2017 is buried and away from public debate. I think, as I say, that it is a mistake.In my opinion, what happened in Catalonia four years ago was possible because the autonomous community had assumed some powers that are directly linked to the exercise of sovereignty. Specifically, foreign action (which the Generalitat turned into authentic foreign policy) and the police. The situation in Catalonia in 2017 would have been completely different if there were no regional police and if Catalonia had not developed a foreign policy for years aimed at gaining sympathy and support for secession. Consequently, I think it is clear that the regional police should be placed under the organic command of the Ministry of the Interior, as a preliminary step to their integration into the state police; and that vigilance over the foreign action of the autonomous communities should be very tight, establishing the need for all foreign action of the autonomous communities to be carried out in a coordinated manner with the government of Spain. These are the minimum conditions to prevent a situation like that of 2017 from repeating itself. I do not go into, at the moment, how to get it;I limited myself to explaining that if the possibility is maintained for the autonomous communities to control armed bodies and maintain international relations that are confused with those that a subject of public international law could develop, a situation such as the one experienced four years ago could arise at any time ; and I don’t think we should settle for it to fail again; we have to make sure that it won’t happen again.Regarding the hypothetical inefficiency of decentralization, my point is that there are dysfunctions derived from the fact that the autonomous communities have chosen to systematically expand their powers while the state has not had much interest in keeping theirs . The result is a progressive emptying of state competencies that does not seem to have an end, since the possibility of some competition being recentralized is, in practice, non-existent; Therefore, the progressive weakening of the state is a fact that does not seem to be going back.As a result of this progressive emptying we find, for example, that the health ministry is, in the words of ERC deputy Gabriel Rufián, an “empty shell”; what has had, it seems to me, serious consequences in the action in the face of the pandemic. In the final months of 2019 and early 2020, I do not think that any regional health official thought that it was their responsibility to prevent the pandemic that had started in China; but, at the same time, a health ministry that lacked practically competencies did not seem the best institution to face the challenge that was coming our way. The chaos of February, March and April confirms – for those who want to see it – that the fragmentation of the health system does not help us in situations like the one experienced last year.Without leaving health, what happens now that we are in the middle of the vaccination campaign and people move from one autonomous community to another for the holidays? We have assumed that we can get vaccinated at any point in our autonomous community; But why does it seem natural to us that it is impossible to get vaccinated in another autonomous community? Why don’t we consider that in the same way that living in Santa Perpètua de Mogoda – it is my case – I can be vaccinated in Lérida, I should be able to vaccinate in Asturias or in the Canary Islands? What do we gain from fragmentation? Do we remember that the failure of the covid radar application, it seems that it was, at least in part, due to the difficulty of making it fit with the different autonomous health systems ?
Even in an area in which some political parties ask for more regional powers, taxation, there are studies that show that the degree of fragmentation is producing inefficiencies in the system (for example, this well-known one by Thomas Piketty ). If we move from here to education, we find the recent response of the government of Spain to the European Parliament in relation to the failure, by the Catalan government, that Spanish is the language of learning in school. The Spanish government assumes that it does not have the capacity to guarantee the educational rights of Spaniards in Catalonia . I will not go into the substance of the matter (actually, it does have certain powers and means to act); to stop atthe little scandal that has caused the country’s government to confess itself defenseless to act in a part of its territory .
Still more examples could be given; so for example in commercial regulation; but I think they are enough to illustrate my thesis: compared to what has been generally accepted thinking in the last forty years (the powers of the autonomous communities must always increase and those of the state must decrease) we must consider no longer stopping transfers of competences to the autonomous communities, but to reverse the process and regain certain competences on the part of the state. I do not claim that everyone agrees with the above, but I do claim that it is considered as legitimate an approach, at least, as the one that has guided our policy for the last forty years. We have the right to propose that the model of increasing decentralization, which can easily lead to fragmentation, be revised.Now, how can this objective be achieved, which, let us dare to say it, is recentralizing? We will see it next.
IV. Legal and constitutional articulation
The proposal that is made has a first consequence: to stop new transfers to the autonomous communities . In principle, any transfer should only be made if, after assessing its initially irreversible nature and the level of fragmentation it implies, it is justified for some reason in the general interest. In this sense, proposals that we are hearing these days, such as the transfer of the management of the Barcelona airport to the Generalitat or the transfer of the MIR, should be viewed with caution. It is not only about what has just been pointed out in the sense that it is not evident that this fragmentation of competition benefits citizens, but, in addition, the presence of the state in the territory of all the autonomous communities is essential to limit the risks of a new challenge such as the one experienced in 2017. If the presence of the state is residual in a territory, it is easier for the regional administration to create an appearance of control over it that would have effects at the international level. This is another reason to quarantine any transfer in the case of those autonomous communities in which there is a risk of using said powers to claim sovereignty in the event of a declaration of secession.And please, I know how what I say sounds; but all of the above is not speculation. We have lived it for less than four years. As I say, let’s not close our eyes to the evidence.So, first, put an end to the emptying of the state; but if we want to go further, what can we do?Autonomous powers are assumed, basically, in the statutes of autonomy, which specify what is established in title VIII of the constitution in general. The statutes of autonomy are, therefore, essential norms in the configuration and expansion of the scope of competences of the autonomous communities. But, apart from the statutes, competences can also be transferred through state transfer laws, as established in art. 150.2 of the constitution. In the case of transfers made by this last route, the state legislator could unilaterally reverse the competition; but this is not the case, obviously, in the case of powers conferred by statute of autonomy. These statutes, in turn, may contain provisions that go beyond what the constitution objectively allows; since if nobody challenges them before the Constitutional Court, the unconstitutionality in which they may have incurred will not be declared. On the other hand, the Constitutional Court has often generously interpreted the autonomic competences, finding constitutionally compliant interpretations of statutory precepts that in their obvious sense would imply a violation of the autonomic competences limits.Ultimately, as the article I cited at the beginning of this post points out, it seems almost unfeasible to legally reverse the situation of fragmentation that I have described in the preferential sections . That is why a reform of title VIII of the constitution has to be proposed, which regulates the distribution of powers between the state and the autonomous communities (it also deals with local administration, but we will not go into this here).The proposed reform of title VIII of the constitution is not new. In fact, it has been proposed for decades as a way to satisfy nationalists; that is, expanding the competences that the autonomous communities can exercise. The proposal that I make is to undertake this reform of title VIII of the constitution, but precisely to order the autonomous powers, reducing some of the existing ones and establishing some mechanisms, which have proven necessary in recent years, in order to to guarantee a loyal performance of the autonomic administrations .I already anticipate that a reform like this one does not intend to eliminate the autonomous communities; something that, on the other hand, cannot be done through a reform of title VIII, since the right to autonomy is included in the preliminary title of the constitution, in its article 2, so eliminating that right would require resorting to the mechanism of aggravated reform of the constitution. This is not the proposal made here.
What is proposed, in a much more modest way, is to modify the list of state and regional powers that appears in title VIII of the constitution, in order to adjust them to what was stated in the previous paragraphs: the external action of the autonomous communities may not be exercised outside the state; There can be no regional police, and health should once again be a state competence. Of course, this reform would be an opportunity to review the rest of the competences and see how it is better to accommodate them to the complex reality of Spain. For example, I believe that jurisdiction in matters of civil law could either become exclusive to the state or, alternatively, grant it to all autonomous communities (right now only Galicia, the Basque Country, Navarra, Aragón, Catalonia and the Balearic Islands have it ). I do not elaborate on it because the argument would be too long;Along with this review of competencies, we should also introduce elements to guarantee the institutional loyalty of the autonomous communities . Article 155 is insufficient – as has been seen – to prevent an autonomous community from putting the general interest at serious risk. I won’t go into the details of what those tools for federal loyalty might look like; But I think that, in light of what has been experienced in recent years, it does not seem sensible to be satisfied with the current mechanisms envisaged for cases in which the authorities of an autonomous community act illegally or seriously undermine the general interest .A reform such as the one proposed should also take into account temporary problems . Deadlines should be set for the adaptation of the existing statutes of autonomy to the new constitutional regulation and provide mechanisms for the event that the necessary reforms are not carried out in the precise term. The Constitutional Court should also have a relevant role here that would have to be regulated in the aforementioned constitutional reform .In any case, this reform would not require the aggravated procedure , so a vote in favor of three fifths of the Congress and the Senate would suffice. It could even be approved by a two-thirds majority in Congress and an absolute majority in the Senate (art. 167 of the constitution. Of course, if one-tenth of the deputies or senators request it, the reform would be submitted to a referendum.
In this post I have tried to show that the level of decentralization that we have in Spain is excessive, as I have written on some other occasion, we have decentralized ourselves beyond our possibilities . In addition, this decentralization has put the unity of the country at risk, as could be seen dramatically in 2017. Given this, what I propose is that the reform of Title VIII of the Constitution be accepted as a legitimate proposal in order to limit the autonomic competences and establish mechanisms that guarantee the institutional loyalty of the autonomic administrations.From here, I believe that the political parties should take a position on this issue. In the end, it will be the group of citizens who, with their vote, determine whether this proposal goes ahead or not. We have to be aware that no proposal is impossible if it gets a sufficient number of support at the polls, and that if that support is not obtained and the current fragmentation continues that -in my opinion- will lead to the definitive rupture sooner or later, it will be because we Spaniards have wanted it that way.Killing itself as a country is an option; but what would be stupid is to do it without being aware of it. This post is only intended to help us to be.