REGROUP Blog-Post on the Best Practices and Key Takeaways for Liberal-Constitutional Democracies after the Covid-19 Pandemic
Niels Kirst, Assistant Professor of European Law at Dublin City University, Deputy Director of the DCU Brexit Institute
The Covid-19 pandemic constituted a watershed moment for liberal-constitutional democracies globally. While protecting lives comprised the primary objective of decision-makers, it came with the significant cost of restricting civil liberties, constitutional guarantees, and, ultimately, fundamental rights. In WP6 of the REGROUP project, Professor Federico Fabbrini and Dr Niels Kirst from Dublin City University have analysed and identified legal best practices and key takeaways for liberal-constitutional democracies in the aftermath of the Covid-19 pandemic. This blog post distils the findings of the policy paper with the objective to enhance the EU’s effectiveness in pandemic response. It, therefore, presents five policy recommendations on the different branches and levels of government.
The EU is a case-study of 27 different constitutional democracies responding to a global health crisis. The EU’s initial response was fragmented and diverged among the Member States. Only later, coordinated efforts such as the Next Generation EU (NGEU) recovery plan and the COVAX initiative for global vaccine distribution came into being. As governments responded to this unprecedented public health crisis, several legal and constitutional shortcomings emerged, highlighting the following best practices.
Maintaining Transparency and Accountability in Executive Measures to Increase Citizen’s Trust
Ex-ante transparency and ex-post accountability are two crucial features for executive measures during a pandemic. Member States such as the Nordics coupled evidence-based executive actions with transparent communication strategies. This strategy turned out to be more successful in maintaining public trust. Hence, governments should provide transparent, accessible and timely information about the rationale and evidence behind emergency measures.
Moreover, accountability is essential to ensure the legality of all executive actions during an emergency. This accountability can be attained by ensuring that independent bodies keep an oversight of executive actions and measures, such as in Denmark. After the emergency has faded, review committees and enquiry commissions can be suitable instruments to conduct an ex-post review of executive actions and measures.
Ensuring Proportionality in Emergency Measures via the Legislative Branch to Uphold Democratic Principles
When enacting emergency measures, most Member States implemented sunset clauses and regular parliamentary reviews to maintain the balance between public safety and civil liberties. In Germany, for example, the Epidemische Lage von nationaler Tragweite (Epidemic situation of national importance), which gave the government wide discretionary powers, had to be reaffirmed by the German parliament every six months. Thus, regular review and ongoing oversight through parliaments are essential. Therefore, governments should enact emergency legislation that includes precise, time-bound limits and requires periodic review by the legislature to ensure that measures remain necessary and proportionate.
Moreover, ensuring proportionality of emergency measures is key to not unduly restrict fundamental rights and freedoms. In many Member States, such as Italy or Spain, emergency measures led to exaggerated measures with marginal positive effects on public health, such as prolonged curfews. Emergency measures must be proportionate to the threat faced and should not unreasonably restrict fundamental rights and freedoms. This can be ensured by thorough parliamentary review, even during times of pandemic. Therefore, parliaments need to keep operating (even virtually, such as the EP) during a pandemic to fulfil their constitutionally assigned task of executive and legislative control.
Scrutinising Restrictions via the Judicial Branch to Safeguard Citizen’s Rights and Freedoms
Generally, the protection of fundamental rights and freedoms must be upheld as far as possible. However, there is also the collective interest that needs to be considered. Courts in several Member States played a critical role in reviewing the legality and proportionality of restrictions on freedoms of movement, assembly, religion and business. Looking across the pond, this judicial scrutiny was even higher in the United States (US) when it comes to facere measures, such as mask mandates. In the EU, courts engaged in a balancing exercise between individual and collective interests. Therefore, emergency measures should be designed to infringe as minimal as possible upon individual rights while safeguarding the collective interest of public health.
Pandemics are constantly evolving situations. Therefore, courts should mandate regular reassessment of restrictions to ensure they remain justified as the situation evolves. During the Covid-19 pandemic it could be observed that each wave was different and required a different degree of restrictive measures. Therefore, emergency measures should be lifted as soon as they are no longer essential.
Updating Public Health Legislation on the Member State Level to Increase Preparedness
Member States with comprehensive, flexible and up-to-date public health legislation were able to respond more swiftly and effectively to the evolving pandemic. In some Member
States, the constitutional regulations did not provide for health emergencies. This was a serious pitfall for those Member States, as they had issues to react to the emergency adequately. Member States that do not have such regulations yet should introduce and update them.
Moreover, public health legislation in the Member States should be regularly updated to incorporate lessons learned from past pandemics. The Covid-19 pandemic has shown that comprehensive and adaptable public health legislation that can handle various scenarios and threats is essential for effective crisis response.
Creating a Cohesive European Framework to Enhance European Coordination
The lessons to be learned are that in federal legal systems, such as the EU, coordination is key as it enhances trust and effectiveness. Federal legal systems with preexisting coordination mechanisms were able to respond more cohesively and unified to the pandemic— in contrast, the EU’s initial response was a patchwork quilt. Taking the US federal system as a benchmark, it becomes apparent that it could apply a harmonised federal approach. It did so more under the Biden Administration, and less under the Trump Administration, which left the measures to the States.
Effective crisis management requires coordination and cooperation between different levels of government. A negative example is the non-coordination on the European level during the initial phase of the pandemic. This led, among others, to the reintroduction of border controls within the EU to stop the virus. A measure which, in retrospect, had minimal public health impact. For the future, the Council should establish clear frameworks for intergovernmental cooperation between the Member States and ensure that European principles, such as the Schengen area, are not set aside by the Member States. Clear rules and frameworks allow for streamlined responses and reduce conflicts between European, national, regional authorities.
The Covid-19 pandemic has underscored the importance of legal preparedness and resilience. By adopting these best practices and learning from the key takeaways outlined above, Member States and the EU can enhance their legal frameworks and better protect public health while safeguarding fundamental rights and democratic principles. The lessons learned during this crisis should inform future legal and policy reforms to ensure that liberal-constitutional democracies are well-equipped to face future public health emergencies.
Dr. Niels Kirst is Assistant Professor of European Law at the School of Law and Government at Dublin City University and Deputy Director of the DCU Brexit Institute. His research interests lie in the area of rule of law, the Court of Justice, Brexit, competition law, legal technology, trade law, foreign affairs and geopolitics.
On Tuesday 10 September, the DCU Brexit Institute and Dublin European Law Institute (DELI) hosted the public REGROUP event ‘Legal & Constitutional Perspectives on the Covid-19 Pandemic’ at Dublin City University, read more here.
The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.