The Aftermath of Covid-19 in Western Europe: A Revolution for Public Law?

This paper analyses traditional rules on states of exception from a comparative perspective and assess whether they were useful to tackle the Covid-19 pandemic. The comparative scenario shows that the “law of exception“ is useful insofar as it is correctly applied, according to the rules of each jurisdiction (i.e., respecting triggering circumstances, procedural rules, ex post oversight). Otherwise, exceptional norms are likely to raise tricky issues, especially because restrictions of rights and freedoms may appear unjustified. Similarly, significant challenges exist when factual circumstances that are considered “extraordinary“ are not such, or formal requirements are not complied with (e.g., excessive length of exceptional measures, incorporation of exceptional provisions into ordinary law). Moreover, there are unclear situations, where it is not easy to understand whether an emergency is in place, often implying less effective checks and raising technical doubts.

Covid-19 pushed technological developments of constitutional bodies forward. The core of democratic deliberation and decision-making had been affected as some countries started to digitalise parliaments. While different advantages of virtual parliaments can be identified, the disadvantages of digitalisation also have to be taken into account. The disembodiment of the parliamentary discourse has effects on the parliamentary culture of discussion, creating another understanding of collective decision-making and a dependence on IT solutions and IT security. Digitalization creates potentials and risks for societies as well as for constitutional orders. By weighing strengths and weaknesses, opportunities and threats, technological adaptations of constitutional cultures could be made possible. The option to resist technological developments must, however, be a part of constitutional resilience to prevent problematic developments, which could threaten the foundation of liberal democracy.

In France, to deal with the health crisis, a new state-of-emergency legal regime has been created, to allow public bodies to take exceptional measures. The decisions for such measures, severely limiting rights and freedoms, were taken by the President of the Republic, surrounded by a few ministers and experts. This mode of operation disrupted the usual decision-making processes and undermined the rule of law. However, the extensions of the specific policing powers of the Executive have been justified by courts, in particular during the peaks of the crisis. Is the French Government now better prepared to deal with emergency situations, both at logistical and legal levels? Is the legal framework - regarding pandemics, but also other potential major challenges - sufficient? Will usual democratic decision-making processes be restored after the crisis? Finally, will the courts clearly protect differently the rights and freedoms during and outside an emergency?

The Swedish approach to Covid-19 has been described as a soft law approach. This is somewhat true but the picture is more complicated. It has also been argued that the particularity of the Swedish response resided in specific traits of Swedish public law, e.g. that administrative agencies are semi-autonomous in relation to the government. The Corona Commission recently delivered its final report, concluding that the government did not steer its agencies sufficiently, that the initial response was slow, and pointing out a lack of pluralism in expertise related to public health emergencies. These findings can impact on the understanding, interpretation and future of fundamental public law principles, such as the separation of powers between the government and administrative agencies, and between the central government and regional and local authorities. This paper analyses the main findings of the Corona Commission and what they might mean for Swedish public law and crisis management.

To evaluate the long-term effects of the Covid-19 crisis for Finnish constitutional law, some features of the crisis legislation and practices need to be recognized. Among them, the use of various soft sources of law as restrictive measures and certain grey zones of law between emergency and ordinary laws. This paper addresses impending changes to Finland‘s fundamental rights system during the pandemic. The legislative actions taken have included both restrictions and derogations of fundamental rights. A state of emergency has prevailed twice during the pandemic, entailing exceptions to a number of fundamental rights. Moreover, the legislation on communicable diseases has been amended, introducing restrictions on certain rights for limited periods. The paper analyses transformed mechanisms of constitutional divisions, limitations and conflicts, seeking a legally sound balance between individual rights and collective goods with a view to the democratic sustainability of governance.