Coronavirus & The Law (IV): the control mechanisms of emergency measures

Coronavirus COVID19 y Derecho
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The rules, whether legal or not, are of little value if they are not accompanied by more or less effective mechanisms to ensure they are respected by the different subjects they affect. It serves no purpose, as it happens, to establish a ban on the movement of people and vehicles on the streets during an epidemic, if a significant part of the population does not respect it. The problem here is twofold: on the one hand, the possibility that the defaulter will become contaminated, helping to spread the disease; and, on the other, the eventuality that the defaulter is already infected and serves as a chain of transmission. To avoid these assumptions, the existence of administrative (police) and, where appropriate, jurisdictional (criminal) controls is essential.

However, now we do not want to focus on this aspect of the obligation of citizens to respect legal norms (and, in particular, those of crisis), but rather on controls over the exercise of emergency powers by the public authorities. It is essential, in fact, that the public powers respect the limits inherent in the Law of emergencies. That is, the existence, on one side, of a true crisis situation that justifies invoking extraordinary powers, and on the other side, the respect of the principle of proportionality for each of the emergency measures adopted to fight against the corresponding emergency. It would essentially be useless to set precise limits on the functioning of powers and measures of exception if there were no control bodies with sufficient capacity to enforce them, avoiding or, at least, significantly reducing, the possible risks of abuse in its use. These control bodies are, of course, as bound by these limits as the public authorities themselves, holders of the emergency powers.

The control of the emergency, indeed, must be entrusted to a plurality of bodies of diverse nature. This enables, in the first place, the effective extension of control to all interstices of the concept of emergency, whatever the nature and range of the measure in which it finds expression. The distinct nature of the control bodies means, in the second place, that they face the control of emergency measures from very different perspectives. The multiplicity of control bodies, thirdly, hinders potential attempts to dominate or silence all reactions against possible abuses in the unjustified invocation of emergency, or in the concrete adoption and determination of scope of each of the measures of this nature.

In this context, in Spain, the control over the emergency is carried out by three types of bodies that use different parameters or criteria for the performance of their supervisory task:

A) In the first place, there are the political control bodies, among which Parliament stands out, that use essentially (political) opportune parameters for their oversight function[1].

An excellent example of political control is that of the intervention of the Congress of Deputies [Congreso de los Diputados] in the process of declaring the constitutional state of alarm. It should be recalled that the initial declaration of this exceptional status corresponds exclusively to the Government of the Nation through a Royal Decree [Real Decreto] agreed upon by the Council of Ministers[2]. Despite this legal form, this Royal Decree has the value of statutory law, as established by our constitutional jurisprudence[3]. Thus, the Legislative Power does not have any type of competence when it comes to making this declaration and the participation of the Congress of Deputies is limited to functions of mere political control. This is because the obligations of the national Government are limited solely to give an account to this Legislative Chamber of the declaration of the state of alarm, and the Executive branch must also supply it with the information that is required[4]. The Senate [Senado], however, has no role in this process.

Something slightly different happens with the extension of the state of alarm: this function also corresponds to the Government through a Royal Decree, which also has the value of a statutory law. However, the Government must have the express authorization of the Congress of Deputies, which may establish the scope and conditions in force during the extension[5]. Hence, this authorization is not (or, at least, not only) a measure of political control, because, as we will see later, the will of Congress coincides with the will of the Government to decide on whether or not to agree to the extension, as well as on “the scope and conditions” in force during the extended state of alarm.

B) In second place are the bodies of an administrative nature which, in the performance of their supervisory task, use both parameters of legality and those of strictly good judgement (political-administrative). Keep in mind that the legality control checks whether the measures of emergency respect the norms that make up the Spanish legal system (and that they are mandatory for all, that is, both for individuals and for the public authorities); while the oversight based on good judgement allows for controlling whether the measures that are intended to be applied (and which are perfectly legal) are also reasonably good for achieving the general interest objective pursued with their adoption.

C) Third, and as an essential locking mechanism, are the jurisdictional bodies (that is, the courts), which are ultimately responsible for the control, based on exclusively legal parameters, on the existence or not of the need –and proportionality- justifying the measure, even when it has satisfactorily passed the appropriate political and administrative controls previously.

Jurisdictional control in the event of a Spanish state of alarm is exercised directly by the Constitutional Court with regard to both the Royal Decree declaring this exceptional status and the one that accords its extension[6]; while “the acts and provisions of the Public Administration adopted during (its) validity” may be contested before the ordinary jurisdiction[7].

With this fourth paper, we end the review of the essential characterizing features of the Law of exception or Law of crisis. The fifth and following papers (in Spanish) will be dedicated to the analysis of the concrete keys that comprehend the legal rules of exception that exist in Spain to face a health emergency such as that of the coronavirus (COVID-19).

Cáceres, 21 March 2020.

Vicente Álvarez-García*

Professor of Administrative Law

University of Extremadura

* Flor Arias-Aparicio and Enrique Hernández-Diez are also collaborating in the edition and revision of this series. They are teaching and research staff at the Administrative Law Area (Department of Public Law) of ​​the University of Extremadura.

[1] The Spanish Houses of Parliament are bicameral. According to article 66 of the 1978 Spanish Constitution, “The Cortes Generales represent the Spanish people and consist of the Congress of Deputies [Lower House] and the Senate [Upper House]”.

[2] Article 116.2 of the Spanish Constitution (CE) and articles 4 and 6.1 of the Organic Law 4/1981, 1 June, on the state of alarm, exception and siege (LOAES).

[3] Order of Constitutional Court (ATC) 7/2012, 13 January; and Judgment of Constitutional Court (STC) 83/2016, 28 April.

[4] Article 116.2 CE, article 162 of the Standing Order of the Congress of Deputies of 24 February 1982 (RCD) and article 8.1 LOAES.

[5] Art. 116.2 CE, art. 162 RCD y art. 6.2 LOAES.

[6] ATC 7/2012, 13 January; and STC 83/2016, 28 April.

[7] Article 3.1 LOAES.

Coronavirus & The Law (III): the limits of emergency powers

Coronavirus COVID19 y Derecho
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We saw in the previous comments that exceptional measures temporarily replace the rules that govern our lives in ordinary circumstances: if we can normally move freely[1], this fundamental freedom is severely limited after the declaration of the Spanish state of alarm[2]. If under normal circumstances our domicile is inviolable and the forces of order cannot enter except with our consent, a flagrant crime occurs or if there is a judicial authorization[3], in cases of the activation of the Spanish state of exception this fundamental right could be suspended[4], etc. These are just a couple of examples of the many imaginable changes in the behaviour of ordinary (or normal) Law in crisis situations.

The existence of some emergency powers with this importance in the hands of the public authorities is essential if we want to overcome the serious dangers that may stalk the orderly life of States. That said, we have to ensure that these authorities are not tempted to abuse them. History shows that, as a general rule, these emergency powers have been used correctly; but also, on more than a few occasions, they have been used in an improper fashion, undermining the life and additional multiple fundamental rights of the people. The Law must ensure that this does not happen, and that the emergency powers in the hands of public authorities are not legally uncontrolled.

Therefore, in order to avoid (or, at least, reduce) the possible risks of abuse in invoking emergency powers, it is essential to use two types of counterweights: on the one hand, it is essential to rigorously outline a system of legal limits and, on the other, it is essential to establish an effective system of control over the specific use of such extraordinary powers. We will focus now on offering a panoramic view of the legal limits of emergency, and then we will review the political, administrative and jurisdictional controls against the initial decision to activate the extraordinary powers and the concrete use of the emergency powers that are applied after such activation.

The legal limits of the emergency powers can be basically divided into two: first, the effective existence of a situation of emergency, and, second, the principle of proportionality in the specific use applied in each case of extraordinary powers.

A) The effective existence of the emergency powers supposes the concurrence of a serious and real danger to the community’s survival. For example, a pandemic like the one that is currently devastating Spain, threatening the orderly life of the State and putting the health of its citizens in extreme danger. When there is no effective factual situation that endangers the achievement of an essential purpose, the public authorities will obviously not be able to invoke the concept of emergency in order to justify their actions. Public powers are responsible for observing and evaluating the existence and concrete content of the serious and real danger and its threat to community survival, from the moment they adopt and apply the first specific emergency measure. Notwithstanding, naturally, these assessments will be audited, in the second instance, by the different control bodies.

B) The second category of limits, which operates when, in fact, there is a situation of emergency, serves to outline the concrete content that each of the specific exceptional measures may have, or, what is the same, to delimit the derogatory scope (on the ordinary Law) and the adapted one (creating a new extraordinary measure) of a certain exceptional rule. All the limits that make up this category redirect back to the principle of proportionality considered in a broad sense, whose function is to reconcile opposing interests, seeking a specific equilibrium point for each conflict situation, an equilibrium point that finds its reflection in each exceptional measure. This concept of proportionality in a broad sense constitutes, since its historical configuration by the Prussian Police Law, a complex concept, integrated, in turn, by three other (sub) principles of progressive application:

a) First, that of ‘adjustment’ (temporal, spatial and material) of the measure to the factual situation threating the community’s survival. The “temporary adjustment”, for example, demands that the measures are not extend beyond the duration of the crisis situation.

b) Second, that of ‘minimal intervention’. This (sub) principle means that, among the different appropriate measures to face the dangerous situation, the public powers must choose the least harmful to the interests of individuals and for the generality.

c) Third, that of ‘proportionality in the strictly sense’. Or, what is the same, the eventual damage to the rights and private and general interests caused by the appropriate and less damaging measure must not be ‘manifestly out of proportion’ regarding the beneficial effects derived from the effective realization of the purpose, overcoming the looming danger.

In conclusion, in each concrete case, emergency can only justify measures which are: effectively aimed at overcoming a danger that threatens community survival, are adequate for it, are as least harmful as possible and whose negative effects are not found manifestly out of proportion in relation to the beneficial effects derived from the realization of the end.

We said in previous chapters that emergency powers in the hands of the public powers are essential to overcome the crisis, and in the preceding paragraphs we have seen the limits devised by Law so that abuses are not committed when taking extraordinary measures. Nevertheless, it must be borne in mind that these limits are useless if a system of effective controls over the exercise of the emergency powers is not established. We will dedicate next chapter to this issue, as we have advanced previously.

Cáceres, 20 March 2020.

Vicente Álvarez-García*

Professor of Administrative Law

University of Extremadura

* Flor Arias-Aparicio and Enrique Hernández-Diez are also collaborating in the edition and revision of this series. They are teaching and research staff at the Administrative Law Area (Department of Public Law) of ​​the University of Extremadura.

[1] Article 19 of the Spanish Constitution of 1978 (CE).

[2] Article 11 a) of the Organic Law 4/1981, 1 June, on the states of alarm, exception and siege (LOAES), and article 7 of Royal Decree 463/2020, 14 March, that declares the state of alarm to manage the situation resulted of the health crisis created by COVID-19.

[3] Article 18.2 CE.

[4] Article 55.1 CE and article 17 LOAES.

Coronavirus & The Law (II): the essential elements of the law of exception

Coronavirus COVID19 y Derecho
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An analysis of the legal responses offered by Western States to the extreme dangers that have occurred throughout history allows us to establish the essential elements of the Law of exception. We will now explain in a few paragraphs these basic characteristics, developed at length the book El concepto de necesidad en Derecho Público [The Concept of Necessity in Public Law] (Civitas, 1996).

 First of all, the “Public Powers” are obliged to fight against critical situations.

In order to ensure the very existence of the State and the performance of essential tasks for the orderly functioning of it, society is endowed with “Public Powers”. It is the performance of the aforementioned functions that precisely justifies their creation and existence.

The “Public Powers”, therefore, are not only entitled, but are obligated to fulfil this mission. And, inasmuch as this is so, it is essential to provide them with the sufficient means to do so, since it would not make the slightest sense to create organs, entrust them with functions, and then prevent them from complying with these functions due to a lack of means. In short, if the State intends to survive and function in a minimally correct manner, it must equip its “Public Powers” ​​with the necessary means to perform the functions of general interest entrusted to it. The obligation of the “Public Powers” to carry out these tasks essentially differentiates them from private subjects. Any citizen can decide if, in case of need, to resort to self-defence or not. The “Public Powers” of a State do not have that option: in dangerous situations that threaten their existence or to their proper functioning, they must adopt the “emergency measures” for their defence, a priori, and as a general rule.

Second, Law is a qualified means of fighting against critical situations in the life of States.

Among the means available to these “Public Powers” to ensure the ends of the State, we encounter Law. It is not, therefore, an end in itself, but a mechanism to achieve the orderly survival of the State, under certain factual circumstances, because of dangers or potential threats (real, current and with a certain geographical scope), which could undermine or even terminate the existence of said State.

Now, it must be reaffirmed that, in the case of Law, as in any other means for the protection of States, the end does not justify every mean. The end only justifies the use of those means that are effectively necessary and proportionate for its realization. Obviously, the more legally valuable the purpose to be protected is, and the more serious and pressing the danger is to it, the more incisive the measures will be and which will be justified by necessity.

 Third, there are two fundamental effects of the Law of exception.

Having stated that, in the first place, the action of the “Public Powers” is obliged to fight against the dangers that threaten the orderly life of the States, and that, secondly, the Law is one of the qualified mechanisms of the that these Powers possess for this crucial battle, it is necessary to pause for a moment on the fundamental effects of the Law. Specifically, those destined to face critical situations, which is the Law of exception.

In this context, emergency has two types of fundamental effects that are very characteristic of Law: one negative, and the other positive.

Focusing on the first of these, it must be emphasized that emergency makes it possible to temporarily exempt the application of “normal” or “ordinary” Law. Emergency enables the removal of all legal obstacles to the actions of the Public Powers when these are indispensable for the realization of essential functions that are necessary for the orderly existence of the community.

This negative effect of inapplication of “normal” Law is complemented by another positive consequence: emergency entitles the Public Powers to adopt the specific rule, the precise legal instrument, which, in a specific situation of danger to the essential community purpose (in particular, the very existence of the State), will allow the realization of the end, overcoming the specific threat against it. In this way, the emergency becomes a technique for adapting the Law to the threatened social reality.

Both effects of the emergency, the negative or derogatory, and the positive or adaptive, find a concrete projection on the different legal rules that discipline the ordinary actions of the Public Powers, allowing their alteration. The emergency justifies, indeed, a modulation of the legal rules of responsibilities (permitting, for example, a readjustment of powers among different Public Administrations), of procedure (allowing its simplification, its replacement and, even, its suppression), of form and of content. Applying this idea to the moment in which we live, the current Spanish state of alarm has made possible, for example, the recentralization of health and police powers in favour of the Spanish Government, the suspension of administrative deadlines within the entire public sector in Spain (national, regional and local) or the limitation of the freedom of movement of people.

In the next chapter we will address the limits that accompany legal emergency measures, as well as the controls of a different nature that exist to avoid potential abuses.

Cáceres, 19 March 2020

Vicente Álvarez-García*

Professor of Administrative Law

University of Extremadura

* Flor Arias-Aparicio and Enrique Hernández-Diez are also collaborating in the edition and revision of this series. They are teaching and research staff at the Administrative Law Area (Department of Public Law) of ​​the University of Extremadura.

Coronavirus & The Law (I): a short introduction to Law of exception

Coronavirus COVID19 y Derecho
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The history of humanity (and, of course, the history of Spain) is replete with situations of crisis which have often been occasioned by the forces of nature (earthquakes, floods, major urban and forest fires, etc.). Yet, on many other occasions, these situations are also due to human action that has originated them in more or less conscious ways (wars, terrorist attacks, etc.).

Among these crises, health emergencies have featured prominently. Although it is true that for years they have not featured prominently in the life of the Western world, they have not ceased to be present in some developing areas (we can think of the periodic epidemic crises caused by the Ebola virus in Africa – which was also a minor scare for Europe-). Epidemics have always existed and, surely, these health emergencies will continue to occur as long as human beings inhabit our planet.

The dimensions of these catastrophes have varied from one case to another, and the social responses, consequently, have differed according to the severity or imminence of danger in the situations that have had to be faced.

Our purpose over the next few pages is to try to explain in very brief comments (in small does) how the law behaves in crisis situations and, in particular, in the fight against the coronavirus (COVID-19) epidemic.

It should be borne in mind, as a starting point, that legal responses have always been a highly qualified mechanism in all societies to face the natural or human dangers that have stalked them throughout the ages. Against this background, the fight against emergencies has had the characteristic mechanism of substituting the legal rules that govern the day-to-day running of a society with extraordinary legality (which can only appear in these serious situations, and which must disappear when these dangers have ceased to exist). Montesquieu explained this phenomenon with very precise words: “There are cases in which a veil should be drawn for a while over liberty, as it was customary to hide the statues of the gods”.

This exceptional legality is set today through constitutional norms, but this does not mean that necessary provisions do not exist in other norms of a lower legal value, such as Acts of Parliaments. Indeed, the current Spanish Constitution of 1978 provides for the existence of three exceptional states (alarm, exception and siege), but Spanish statutory health laws also include rules of the exception to face crises, permitting, for example, the adoption of the “emergency measures” by the health authorities to deal with “communicable diseases”. This is demonstrated, for example, in article 3 of Spanish Organic Law 3/1986, of April 14, on Special Measures in the Field of Public Health.

The eagerness to anticipate crises on the part of the Law is justified by the primary idea of ​​seeking security of how the Power should behave in the face of emergency situations, in order to overcome them in the best possible way. In this sense, enormous powers are conferred on the subjects to whom society entrusts the direction of the fight against the crisis. These subjects must have ample legal capacity to carry out this task of maximum general interest, sometimes being able to limit or, in the most serious cases, even suspend the fundamental rights and freedoms of persons. With the declaration of the state of alarm, our leaders, for example, have centralized the emergency powers to fight against the coronavirus in the hands of the Spanish Government and have substantially limited (although they have not totally suspended) the freedom of movement of people.

Within the preventative interest of the Law of crises, there is, however, a second idea: in the face of the dangers confronting a society, the law of emergency grants wide ranging powers to the leaders who govern (those necessary to overcome the crisis), because, otherwise, it would not be possible to overcome it, and the social group would be threatened. Notwithstanding, these leaders must not be able to abuse these great powers. It is necessary to limit them, being the Law of exception a key for this purpose. Thus, governing leaders cannot, for example, use these powers indefinitely, but only while the crisis lasts. In concrete terms, the Spanish state of alarm for the fight against the coronavirus epidemic makes it possible to force most of the population to be confined to their homes, but this restriction on fundamental freedom of movement can only exist for the duration of the health crisis, and cannot be extended further, indefinitely.

In the following comment we will try to explain what are the essential elements of this Law of the exception, whose existence we have just introduced.

Cáceres, 18 March 2020

Vicente Álvarez-García*

Professor of Administrative Law

University of Extremadura

* Flor Arias-Aparicio and Enrique Hernández-Diez are also collaborating in the edition and revision of this series. They are teaching and research staff at the Administrative Law Area (Department of Public Law) of ​​the University of Extremadura.