Too Little, Too Late? The Spanish Government’s Proposals to Resolve the Current Conflict with Catalonia

In order to have a chance of success, the proposals for dialogue and reform by the Spanish Government must address the long-standing request of the institutions of self-government of Catalonia, which represents the demand of a significant segment of the population, to be properly recognised as a minority nation, and therefore adopt an understanding of Spain as a plurinational state – writes Dr Elisenda Casanas Adam.

The conflict between Catalonia and the central authorities of the Spanish state has been growing since the Constitutional Court read down a significant part of the newly adopted Catalonian Statute of Autonomy in 2010, and is currently centred on Catalonia’s plan to hold an independence referendum on 1 October 2017. This conflict has been characterised by a constant confrontation between the Spanish and Catalan authorities and a lack of dialogue or negotiation. In particular, the Spanish Government has refused to engage with the Catalan proposal to hold the referendum, arguing that it would not be compatible with the Spanish constitutional framework, and has appealed to the Constitutional Court to block the different legal avenues that Catalonia has pursued to this end. It has also announced that it intends to do the same with the forthcoming referendum. On the other hand, however, the Spanish Government has not yet put forward any detailed proposals of its own as an alternative to independence for those citizens who are increasingly dissatisfied with Catalonia’s position within Spain. It is notably significant, therefore, that in August 2017 the Spanish Prime Minister, Mariano Rajoy (Popular Party), announced that the Spanish Government would adopt a series of measures in response to the on-going demands of Catalonia, as a means to resolve the current conflict. This piece analyses these proposals in the current context and argues that, while they are a welcome development, as sketched out so far they are insufficient to fully address the conflict and may have come too late to provide the basis for an effective negotiated outcome.     

Images of Catalan citizens holding large protest marches in favour of an independence referendum for Catalonia have become commonplace. There are multiple and diverse reasons behind the growing dissatisfaction with the overall constitutional framework, and the fluctuating but significant support for independence in the region. These include the lack of proper recognition of Catalonia as a minority nation, deficiencies in the functioning of the ‘State of the Autonomies’ - among them, the financing model, and the recent austerity measures adopted by the central state.  This is reflected in the current coalition that is leading the independence movement in the Catalan Government (‘Together for Yes’), which brings together the nationalist centre-right and left wing parties, various independent members and celebrities, and relies on the support of an anti-capitalist party in the Catalan Parliament. On 30 July 2015, the previous Catalan Prime Minister, Artur Mas (currently barred from holding public office because of his participation in the previous attempt to hold a referendum) brought a list of 23 demands from Catalonia to the Spanish Prime Minister. The current Catalan Prime Minister, Carles Puigdemont, then increased this number to 46 in his first meeting with Mariano Rajoy on 20 April 2016. These were organised in four blocks: the relationship between Catalonia and Spain (including requests for a referendum), the guarantee of social rights, the lack of fulfilment of obligations in relation to Catalonia by the central state, and the avoidance of the judicialisation of politics. It seems, therefore, that any proposal should be based on genuine negotiation with a view to address each of these different elements.

The recent announcement by the Spanish Government that it will formulate an offer of negotiation with Catalonia is a positive development, which could open the possibility of a negotiated outcome for the conflict. The full content of the proposals has not been made public, as sources close to the government have highlighted that they are not yet fully finalised. However, they have advanced that they would include the improvement of Catalonia’s financing system, more investment in its infrastructures, and more generally many of the demands that Artur Mas, initially, and then Carles Puigdemont, included in their respective documents. As initially set out, these do not seem to require constitutional amendment. If they did, and due to the high thresholds required, they would not be able to pass without the agreement of other parties, and in particular, the main state-wide opposition party (Socialist Party). Overall, this could seem a good starting point, yet these initial proposals come across as significantly limited when compared with the Socialist Party’s much more ambitious catalogue of proposals in the same sense. Their proposals, which would require significant revision of the 1978 Constitution, include a federal reform of the model of territorial organisation of the state to ensure a ‘better fit’ for Catalonia, and the specific recognition of Spain as a ‘plurinational state’. Again, these reforms would not be able to pass without the support of the current governing party. In response, the Spanish Government has expressed its opposition to an in-depth reform of the 1978 territorial model, stressing in particular that it does not accept or understand references to Spain as a ‘plurinational state’, when the Constitution specifically refers to ‘the Spanish nation’, ‘nationalities’ and ‘regions’ (Art 2). It seems, therefore, that it is not prepared to address one of the core roots of the conflict, which has resulted precisely from the interpretation of this ambiguous constitutional formula. As a result, it seems that the government proposals as currently framed will not provide sufficient basis for a negotiated outcome.

In addition, when considering the timing of these proposals, Mariano Rajoy has also declared that there will be no movement on the part of the Spanish Government until after 1 October, the planned date of referendum. Here there is also a difference with the Socialist Party’s proposals, who plan to request the establishment of a specialised commission in the Congress in September, bringing together the main state-wide parties and the parties in government in Catalonia, to study the reform of the territorial organisation of the state. The Spanish Government has not clarified whether it will participate in the commission, if set up, but it has stated that it is not the time for such initiatives, and that all state-wide parties should be working together to ensure the referendum does not go ahead. According to Mariano Rajoy, after the date of the referendum ‘the scenario will be different’. However, when considering the different potential scenarios for after 1 October, it seems that, even if the Spanish Government’s proposals could provide the basis for a negotiated agreement if they were put forward before the referendum date, they may then come too late:  

a. The referendum is blocked by the Spanish Government

The Catalan Government has made very clear that it intends to go ahead with its plans and does not foresee any ‘other scenario’ than the holding of the referendum.  To this end, it carried out a recent reshuffle, removing all ministers that had any doubts regarding the process or its potential consequences. The pro-independence parliamentary groups have also presented their ‘Referendum Bill’ and their ‘Bill of Juridical Transition and of the Foundation of the Republic’, which would regulate the developments that would follow a ‘Yes’ vote, in the Catalan Parliament. The Spanish Government has announced that it will challenge them before the Constitutional Court, as soon as the Catalan Parliament starts considering them. Pre-empting this move, the Catalan Prime Minister, Carles Puigdemont, has responded that the Catalan Government will ignore any decisions of the Court invalidating these Bills. If this is the case, the Spanish Government has not explained what legal avenues it will then pursue to block the referendum. A recent reform allows the Constitutional Court to suspend public authorities that do not comply with its rulings. Mention has also been made of the possible applicability of the crimes of sedition and rebellion as regulated in the criminal code. The Constitution also enables the Government to take ‘the necessary measures’ to ensure that an Autonomous Community complies with its obligations under the Constitution, or to protect the general interest of the state, with the approval of the absolute majority of the Senate (Art. 155). Therefore, as things stand, the suspension, prosecution or removal of some of the representatives of the Catalan institutions is a real possibility. Sources from Mariano Rajoy’s own party have pointed out that, depending on developments, it is unclear who his main interlocutor will be after the referendum date. However, the members of the Catalan Government and Parliament have been democratically elected by, and have the clear support of, the Catalan people. A severe measure such as suspending them, prosecuting them, or removing them from office will only fuel the conflict further, increasing citizen dissatisfaction, and will not create a favourable climate for negotiation and agreement.   

b. The referendum goes ahead, with a reasonably high participation, and a ‘Yes’ victory

It is still possible that the referendum will go ahead on 1 October, at least in some form. A recent poll showed that while overall support for independence has gone down a couple of points (41% in favour, 49% against), of the 67.5 % that stated they would participate in the referendum, 62.4 % said they would vote ‘Yes’ in contrast with the 37.6 % that said they would vote ‘No’. The ‘Yes’ side therefore has a clear chance of winning. In this case, if the process presents a minimum of guarantees, if there is a minimum turnout, and if there is then a majority of ‘Yes’ votes, then the Catalan authorities will aim to proceed with their planned process of rupture from the Spanish state. As currently set out in the ‘Referendum Bill’, in the case of a victory of the ‘Yes’ vote, the Catalan Parliament will declare independence within two days of the announcement of the result (Art. 4.4). Again, any intervention from the Spanish authorities to stop this process after a clear victory of a ‘Yes’ vote will only fuel the conflict further, and will not create a favourable climate for negotiation and agreement.  

Initial proposals for the Catalan referendum included an intermediate option of further autonomy for Catalonia and therefore could be seen as a negotiation tactic, which would put the Catalan authorities in a stronger position to obtain their list of demands. However, due to the duration of, and intense confrontation that has characterised the conflict, it seems that that the leaders of the Catalan institutions and many citizens committed to independence firmly believe that it now is either impossible or too late to reach a satisfactory agreement for Catalonia. As expressed by the Speaker of the Catalan parliament, Carme Forcadell, ‘This is not the time to negotiate more powers. That may have been the case in the past, but that moment has passed.’ In the case of a victory of the ‘Yes’ vote, there is then a real possibility of a unilateral declaration of independence.

c. The referendum goes ahead, with either a very low participation, or a ‘No’ victory

It is also possible that fewer citizens than those expected will turn up to vote, or that more of those who are against independence will decide to take part in the referendum, resulting in a victory for the ‘No’ side. It seems that only in the scenario where the referendum goes ahead and there is either a significantly low turnout, or a victory for the ‘No’ side, that some form of dialogue and negotiations between the Spanish and Catalan Governments will clearly be necessary. In the case of a victory of the ‘No’ vote, the ‘Referendum Bill’ states that there will then be elections to the Catalan Parliament, which may lead to a different balance of parties in Catalan institutions (Art. 4.5). This will also set a new context for the negotiations, and Mariano Rajoy’s expected proposals, despite being clearly insufficient, may provide an initial basis for this.

To conclude, in order to have a chance of success, the proposals for dialogue and reform by the Spanish Government must necessarily address the long-standing request of the institutions of self-government of Catalonia, which represents the demand of a significant segment of the population, to be properly recognised as a minority nation, and therefore adopt an understanding of Spain as a plurinational state. Moreover, these proposals should be put forward before the date of the referendum to provide citizens who are currently dissatisfied with Catalonia’s position within the Spanish constitutional framework with an alternative to independence. If the Spanish Government waits until after 1 October, and depending on developments, their proposals may come too little, too late to provide for the possibility of a negotiated outcome.

Dr Elisenda Casanas Adam is a Lecturer in Public Law and Human Rights, and Associate Director of the Edinburgh Centre for Constitutional Law at Edinburgh Law School.