Sixth wave reopens legal debate on the restriction of rights

MadridDo we need a pandemics law that would allow the application of measures that limit fundamental rights without depending on the criteria of regional high courts? Or is the current legislation enough? The sixth wave has reopened the legal debate, and the curfew and limit on the number of people at gathering in Catalonia has once again set a precedent. Pending the Supreme Court's ruling, it gives the Spanish government reason to believe that there are enough mechanisms in place to deal with the escalation in contagions. "The current situation has nothing to do with that of March 2020," Spanish government sources tell ARA.

Soon it will be two years since the pandemic broke out and the state of alarm was used to decree a lockdown. However, the Constitutional Court considered that, instead, the state of emergency should have been applied because, rather than limiting fundamental rights, citizens were deprived of them in a sustained manner. Despite having promised a legal amendment to avoid having to resort to the state of alarm, Sánchez promoted another six-month state of alarm, which allowed regional governments to restrict rights such as freedom of movement or assembly. The Constitutional Court also overturned it.

The head of the executive had said that the state of alarm was the appropriate instrument, but since last May, when the second state of alarm was lifted, he changed his mind and decided that ordinary legislation could also be used by regional governments to apply measures limiting rights, although not to all effects. The dance of contradictory judicial decisions began and, in view of this, Sanchez changed the law so that rulings could be appealed to the Supreme Court, which would unify criteria.

"In order to control transmissible diseases, the health authorities [...] may adopt the measures deemed necessary in case of transmission risk", article 3 of the organic law 3/1986 of special measures on public health reads. This is what must be invoked by regional governments when they want to apply restrictions. The problem is that the courts, including the Supreme Court, believe the wording is too generic.

However, the Supreme Court has ruled that measures are applicable as long as they are justified, taking the health situation into account. How to assess whether they are proportionate? The Constitutional Court has ruled that restrictions must meet three premises: measures must be suitable to achieve their aim, it must be proven that there are no more moderate options, and the benefits obtained must outweigh the harm in terms of conflicting goods and values. "Simple considerations of convenience, prudence or precaution are not enough," adds the Supreme Court.

The Supreme Court, therefore, has endorsed the current legislation to implement measures such as curfews or limiting the number of people at meetings, but has hinted that the rules could be developed. This is what the PP wanted to do with its "legal plan B" or "pandemics law", which, in practice, tinkers with existing laws.

The PP's alternative

Precisely, the main opposition party, wants to amend the article, introducing references to "controlling entrances and exits of affected areas and the movement in their interior, affecting the rights of free movement and assembly". In addition, the PP's proposal also plans to change the procedure because, in case of a temporary limitation of rights – not a deprivation or suspension – judicial authorisation is not necessary to implement the measures.

For Ciudadanos, what the PP is proposing is a "legal barbarity" because it would give the executive powers that would border on authoritarianism, because judicial control would only be a posteriori. The party also registered an initiative that seeks to create a kind of small state of exception, not involving a generalised suspension of rights but instead establishes a catalogue of freedoms that can be restricted in an exceptional case such as a pandemic. In conversation with ARA, Cs spokesperson Edmundo Bal assures that the former vice-president Carmen Calvo agreed with this idea. Bal concedes that, currently, with such a high percentage of the population vaccinated it is not so urgent to adapt the rules to situations in which you have to apply very drastic measures, although it has been done in Catalonia, but warns that if a new variant generates even more problems than Omicron has the legal framework will not be prepared.

Precisely what parties like the Basque National Party are calling for is a reform of the current legislation so that regional governments have a "legal framework" that allows them to develop their powers in health, says MP Josune Gorospe. PDECat spokesman in Congress, Ferran Bel, agrees although his formation is in favour of doing so through a pandemics law that avoids a central government power grab. In fact, now the state government can also apply measures through the declaration of coordinated actions from the Interterritorial Health Council, which despite including regional government representatives can impose decisions on a region even if its government does not agree. In this case, the Spanish High Court has to back the move.

Another side of the legal conflict is about who should exercise control over the decisions taken by governments. Parliament's validation was necessary for the state of alarm, while in the current situation it is the courts' backing which is necessary. One of the criticisms of the Constitutional Court's repeal of the states of alarm is that a court had declared void a formula that had saved thousands of lives and had had the backing of Parliament on multiple occasions, says ERC spokesman, Gabriel Rufián.

Legislative debate aside, the spokeswoman for JxCat, Miriam Nogueras, remarks that what is needed is "better management". From the CUP, MP Mireia Vehí defends that it is necessary to work "from a public health and not exclusively security and control logic". Strengthening public health is a consensus of all parties consulted, beyond the legal debate on restrictions.