It has been approximately one year since Covid-19 started hitting the globe. The pandemic has urged legislators and governments around the world to strive to find a balance between public health, on the one side, and a number of rights and personal freedoms, on the other side. The latter have necessarily had to be limited to different degrees, where not suspended, over the time, depending on the intensity of the “waves” of the health crisis.
Many countries took these restrictive measures after triggering some kind of “emergency framework”. However, domestic emergency powers resorted to in the Covid-19 crisis are very different from each other. Is it possible to identify common trends in the comparative scenario? Limiting the scope of the analysis to democratic countries of the Western European area, at least four different tendencies can be identified.
Invoking Constitutional Emergency Clauses in Times of Covid-19: A Minority Trend
Using emergency powers entrenched in constitutional emergency clauses has been quite uncommon during the pandemic.
To clarify this statement, it is worth specifying that constitutions of Western European democracies can be categorized at least into two main macro-models based on their approach to emergency situations.
The first macro-model (rather, a “non-model”) includes constitutions that do not provide a systematic and structured regulation of emergency.
The 1948 Italian Constitution embraces this stance. It was drafted in the aftermath of the Second World War, with terrible memories of the Fascist regime still fresh in the minds of the members of the Constituent Assembly. Consequently, the centralization of power in the hands of a single body, especially of the Executive, was opposed as a dangerous shortcut for resurgence of past authoritarianism. For similar historical reasons (i.e. the horrors of Nazism), the 1949 German Constitution, until a 1968 constitutional amendment introducing detailed emergency provisions, fitted this “non-model” as well. Therefore, in distinction from other countries, at present Italy still lacks a systematic and structured constitutional emergency paradigm, albeit the Italian Constitution does contain some emergency clauses. The foremost is art. 77 Const., concerning decree laws. Originally conceived to manage cases of natural disasters, through the history of the Italian Republic it has been used for a number of very different emergencies or, sometimes, even to address situations that hardly fall within the definition of “emergency”, to the point that misuse of decree law is often reported. Then, art. 78 Const. is specifically focused on war, even though the latter is minimally regulated.
The second macro-model gathers constitutions that govern recourse to emergency powers, either in general terms (general clause model) or more in detail (rationalized model). A good example of the general clause model is art. 16 of the 1958 French Constitution, vesting the President of the Republic with very vague (and, thus, discretionary) powers in times of crisis.
Constitutions of the rationalized model, instead, regulate emergency more in-depth. For example, the 1949 German Grundgesetz, after the 1968 constitutional amendment, enshrines several emergency regimes and the choice among them is determined by the intensity of a threat arising from a same source of danger.
Other constitutional texts – still belonging to the rationalized model – embody emergency patterns that do not depend on the intensity of a threat stemming from a same cause, but on what circumstances provoked the emergency itself. For instance, art. 116 of the 1978 Spanish Constitution envisages the “state of alarm”, the “state of exception” and the “state of siege”, which can be applied in case of neutral emergencies (as an epidemic), political emergencies and state of war, respectively. They are detailed by Ley Orgánica no. 4/1981.
In the Covid-19 scenario, among mentioned countries, only Spain applied its constitutional regime and resorted to the state of alarm. Declared in March 2020, it was extended several times (the latest extension took place on 3 November 2020 and will last until 9 May 2021).
Since constitutional emergency clauses have been pushed aside in times of Covid-19 by the majority of jurisdictions, how did countries that did not invoke constitutional emergency powers address the pandemic? Beside the minority trend, at least three additional trends have emerged: either “brand new” emergency regimes have been explicitly designed to face the pandemic (see “Creating” New Emergency Regimes), or existing statutory emergency tools have been amended (see Amending Existing Emergency Legislation ), or a “patchwork” of tools was deployed (see A “Patchwork” of Emergency Tools ).
“Creating” New Emergency Regimes
Some European countries have adopted “brand new” emergency regimes, explicitly designed to tackle the pandemic.
France is an example. Although art. 16 of the French Constitution gives broad and undefined emergency powers to the President of the Republic, this provision was not triggered to face Covid-19. Indeed, art. 16 is considered to be drafted to cope with political distress. Thus, after handling the pandemic through existing provisions of the Code de la Santé Publique for a few weeks, France adopted Law no. 2020-290, creating a new kind of emergency, the état d’urgence sanitaire. The features of this law resemble, for some aspects, Law no. 55-385 of 1955, often used to counter international terrorism. Law no. 2020-290 provides that a temporary “état d’urgence sanitaire” is declared by the Council of Ministers. During the state of health emergency, restrictions of rights can be adopted through decrees of the Prime Ministers and so-called ordonnances, i.e. acts of the Government with the same force of ordinary law. The état d’urgence sanitaire remained in force until 10 July 2020, when it was lifted and replaced with a transitional regime. It has been declared again in October 2020 until June 2021.
The French approach did not remain isolated. Also the United Kingdom (which is no longer a member state of the European Union, but can be examined together with European states due to geographical and historical reasons) set up an ad hoc framework, the Coronavirus Act 2020, instead of applying the Civil Contingencies Act (CCA) 2004, that covers, among others, health emergency.
The Coronavirus Act was rushed through the Houses of Parliament in very few days and gave birth to a “special regime” for Coronavirus, which was combined with the application of the Public Health (Control of Disease) Act 1984. The choice not to rely on the CCA 2004 was questioned by UK scholars. They claimed that the CCA would ensure a better balance between the protection of public health, on the one hand, and the safeguard of individual rights and basic democratic principles, on the other hand.
Amending Existing Emergency Legislation
Other countries, even when their constitutions do embody detailed emergency clauses, did not rely on them, amended existing statutory emergency tools. Looking at Europe, it is the case of Germany. The German reaction to Coronavirus was based on a Federal law of 2000 (Law on the Protection against Infections), according to which most powers of crisis management are vested in the Länder, with the support and coordination of the Federal level. In fact, lockdown measures were adopted by the executives of the Länder, which had previously stipulated agreements with the Federation in order to ensure uniformity.
In March 2020, in the midst of the Covid-19 crisis, the Federal level amended the 2000 law, providing for a stronger role of the Federal Minister of Health. The latter has new powers, among others, to impose border control measures aimed at containing the spread of the virus and to limit patents of certain medicines, if useful to fight Covid-19. This amendment shows a centralizing will, recently reiterated by the German Chancellor, Angela Merkel (and further legislative changes are forthcoming). This step was taken by the central Government after some inconsistencies in the Länder’s approach to deal with the pandemic and is being highly debated, as it represents a “turning point” in the German anti-Covid-19 strategy (which, during the first year, was based on a cooperative attitude).
A “Patchwork” of Emergency Tools
A further path consisted of the use of a variety of tools to tackle Covid-19, creating a fragmented pattern. Italy can be placed within this trend. As said, Italy does not have a clearly articulated constitutional framework governing emergencies. After declaring a state of emergency (still in place) pursuant to an existing act, Legislative Decree 1/2018, a number of decree laws – a source that, in Italy, has the same legal force of law, see here – were adopted to react to Covid-19.
These decrees, however, deferred the enactment of measures strongly limiting personal freedoms to decrees of the (sole) President of Council of Ministers (DPCMs). Differently from decree laws, DPCMs are not issued by the President of the Republic nor converted into law by Parliament. Therefore, the use of DPCMs raised a number of issues.
First, DPCMs even restricted freedoms that, according to the Constitution, should be limited only by law (i.e. statutes) or sources with the same legal forces. DPCMs are neither laws nor acts with the same force.
Second, the choice of DPCMs as a one-size-fits-all solution to combat Covid-19 automatically resulted in the marginalization of Parliament in favour of the Executive (rather, of its Head). As a matter of fact, at least at the beginning of the pandemic, the legislative Assembly was almost cut off from most decisions.
Third, DPCMs are unlikely to be subjected to the scrutiny of a court. They fall outside of the jurisdiction of the Constitutional Court, which only reviews primary sources; and administrative courts, despite being, in theory, fully entitled to review them, in practice, either exercised their role with (often excessive) deference or were prevented from scrutinizing them by procedural or timing issues.
In the last few months, after a new Government took office, there has been an attempt to fix these issues, since right-limiting measures are (almost) no longer adopted through DPCMs, but through decree laws, partially overcoming the abovementioned problems. Decree laws have the same legal force of law, involve the Houses of Parliament – which are called to determine whether or not to convert them into law – and are subject to the scrutiny of the Constitutional Court.
What Can We Learn from These “Emergency Trends”?
Against this background, featuring at least four “emergency trends” in Western European democracies, some remarks can be made:
First of all, a sort of “escape” from existing emergency powers can be observed. Not only constitutional, but even existing statutory emergency tools were often put aside, to leave room for “brand-new” regimes. And what came most unexpected is that, in the limited cases where constitutional emergency powers were resorted to “by the book”, i.e. exactly following the constitutional model, this choice raised lots of criticism.
In Spain, some scholars and politicians claimed that the state of alarm was the “wrong framework” to be invoked, since it just allows the limitation of rights and freedoms, while during the pandemic the Executive de facto suspended them, so it should have triggered a state of exception. Though, the latter is designed for political emergencies and not for neutral emergencies, as with Covid-19.
The second point is that either by creating new emergency regimes or by amending existing ones, countries as France, the United Kingdom and Germany did something that is commonly considered an unwise choice. In fact, adopting or amending emergency tools while an emergency is in place is usually regarded as a risk of introducing hasty and ill-thought-out provisions. Emergency rules should be drafted in ordinary times, so as to ensure thoughtful and in-depth consideration and debate, with a better balance of interests at stake.
The third remark concerns countries, as Italy, where no systematic emergency framework exists. In the future, when Coronavirus is over, political actors should at least consider, as a matter of priority, whether a constitutional reform is needed to ensure a tighter and more systematic constitutional regulation of emergency.
Actually, many of the drawbacks arising from the Italian handling of the emergency (such as uncertainty about which sources to be used and bodies to be involved in the struggle against Covid-19, but also failure of Italian levels of government to loyally cooperate, leading to some ineffectiveness), might depend, among others, on the lack of a constitutional emergency paradigm.
However, a possible “new” Italian emergency framework should be not only systematic and detailed, but also suitable to deal with “global threats”, such as pandemics, international terrorism, worldwide financial meltdowns, etc. Otherwise, it would run the risk to become soon outdated and end up being put on the side-line as soon as a new emergency occurs, as happened with existing emergency provisions examined in this brief comparative overview.
At the same time, the role of international bodies might need to be redesigned. This is another topical issue that cannot be overlooked in these “global emergencies”, both political (as international terrorism) and neutral (as Covid-19).