The presentation will look at different federal legal systems and how they constitute unique case studies of comparative constitutional law during emergencies in general, and pandemics in particular. Selected topics in this matter include: how the multilevel distribution of powers relating to health care and disaster management played a role in shaping responses to the Covid-19 pandemic, and in particular how emergency powers were used by different orders of government. Tentative conclusions will be drawn from the initial results of the multi-phase Lex-Atlas:Covid-19 project.
Italy was the first major Western democracy to face the COVID-19 pandemic and adopt wide-ranging lockdown policies. In this unprecedented crisis, the national Executive took centre stage, but its action was subject to oversight by multiple agencies: the President of the Republic, Parliament, the judiciary, public opinion. Which was effective, and which was not? The answer points more to some deep-seated problems of the institutional system, than to the pressure of the exceptional contingency.
The presentation will discuss the active and passive roles played by courts in different countries in overseeing the flurry of regulation emanating from executives and parliaments during the Covid-19 pandemic. As the data collected in the first phase of LAC19 shows, courts were not only used to try to stop or put limits on public health measures regarded as too intrusive of civil liberties but also, interestingly, to try to force governments to adopt more stringent measures where they were reluctant to do so. Courts from different countries also varied significantly, not surprisingly, along the familiar spectrum of activism and deference.
A key challenge for legal studies during the Covid-19 Pandemic is how to assess different sources of law dynamically. ‘Traditional’ legal sources, such as standard domestic legislation, have been put under major stress worldwide. The current presentation discusses these issues regarding the Lex-Atlas:Covid-19 report on Spain. First, the use of instruments such as decree-laws, i.e. statutes passed solely by the Government, and the Government’s declaration of states of alarm allowing the executive to issue extraordinarily restrictive measures normally reserved to Parliament. Second, the role of soft law and the difficulties in appraising it, due to constant change and haphazard official publication of official recommendations. These developments reveal a worrying lack of ‘active’ parliamentary involvement in the pandemic response in Spain. High levels of legal uncertainty, and an almost absolute lack of transparency and public participation in decision-making, ensue as a consequence.
Most legal commentators have bemoaned the lurch towards swollen executive powers during the lockdown. Yet that was a nearly universal, and pretty much essential, facet of the response to the pandemic. What makes this situation somewhat unusual is not so much the resort to outsized administrative power but the extraordinarily long period of executive law-making by delegated legislation or decree powers. This talk will explore various accountability mechanisms employed to scrutinize such law-making, and in particular the parliamentary control of executive rule-making. It will explore the need for upstream involvement of opposition parties in the executive rule-making process in a protracted public health emergency.
The presentation will discuss recent legal trends related to the issuance of vaccine certificates throughout multiple countries. Special focus will be given to some of the initial results of the Lex-Atlas:Covid-19 project.