How public-health needs and civil liberties were balanced during the pandemic was the topic of a seminar on the impact of COVID-19 on constitutional democracies.

A discussion entitled 'Legal and constitutional perspectives on the COVID-19 pandemic' hosted by DCU’s Brexit Institute and Dublin European Law Institute (DELI), on 10 September, heard that public attitudes varied to virus restrictions.

Dr Niels Kirst (assistant professor of EU Law, DCU Brexit Institute) said the key pandemic lesson is that trust is important because if citizens don't trust the government, they will not follow its rules and regulations.

Accountability

After emergency measures are enforced, there must be constant accountability and review of whether those measures are still necessary, he said.

Retrospective evaluation is important too, he added.

“The COVID pandemic is behind us, and not many of us want to talk about it any more because it was a very daunting time.

“But it's important to still review what happened during that time and if all the measures were correct and necessary,” he said.

There were complaints in Denmark about mandatory public-transport mask-wearing, while Luxembourg’s stricter measures limited household outings to one person per week for essential shopping.

Cultural factors

Cultural, political, and institutional factors shaped national responses to the virus, the seminar heard.

There were inherent difficulties in striking the right balance, with decisions made under conditions of uncertainty.

Whether to prioritise health or civil liberties was context-dependent, but prolonged restrictions had significant economic, social, and psychological impacts.

Protecting public health without unduly infringing on rights and freedoms hinged on governments adapting and modifying restrictions as more was learnt about the virus and its transmission.

This flexibility allowed states to strike a more appropriate balance over time.

The pandemic also highlighted the need for better preparedness and infrastructure for future emergency situations.

Countries with robust healthcare systems and updated pandemic plans responded more effectively and without imposing overly restrictive measures.

Less well-prepared states relied on more drastic actions that infringed more heavily on civil liberties.

In his keynote speech Judge Lars Bay Larsen, vice-president of the Court of Justice of the European Union (CJEU), addressed subsidiarity and regional competency.

At the EU level, there were calls for better coordination among member states.

EU principle of subsidiarity

However, Larsen said that health policy remains primarily a national competence, reflecting the EU principle of subsidiarity that matters should be handled at the most effective level.

The pandemic showed the importance of both a coordinated European response and the flexibility to implement region-specific measures based on local conditions, he said.

Countries had to make trade-offs based on their unique contexts. This is particularly the case given global health warnings from the World Health Organisation about potential future crises.

More standardised emergency procedures across countries or regions, especially within entities such as the EU may be required in future crises.

This will be challenging given diverse political and social landscapes, political and legal scholars across Europe from the Regroup (Rebuilding Governance and Resilience out of the Pandemic) project found.

Regroup is an Horizon Europe-funded research initiative now entering its final year.

'State of danger'

The seminar heard that Hungary utilised its constitutional provisions for a state of emergency, specifically a ‘state of danger’ to address the pandemic.

This led to restrictions on public assembly and other democratic rights.

There was significant control over information, which limited access to independent and reliable news.

Its parliament granted extensive powers to the government through an ‘Enabling Act’, allowing it to bypass usual legislative processes.

Poland opted not to declare an emergency due to the constraints it would impose on the timing of its presidential elections.

Both governments used the pandemic to further political goals, the seminar heard.

Weaknesses

The effectiveness of pandemic responses was influenced by pre-existing weaknesses in democratic institutions and rule of law.

This highlights the need to reassess the resilience of democratic principles and constitutional frameworks in times of crisis.

Post-pandemic evaluations are crucial to understand what worked and what didn’t, the seminar heard.

Parliaments must ensure that emergency measures are proportionate and necessary, holding virtual sessions if needed, to maintain their constitutional role.

The pandemic led to a decrease in the number of CJEU cases, particularly as national courts faced their own operational challenges, Judge Larsen said.

It saw relatively few significant cases directly related to the pandemic’s impact.

Most cases involved complaints about restrictions or policies rather than ground-breaking legal challenges.

Legality of measures

The General Court handled cases related to the legality of EU measures, such as vaccine distribution and state aid, but many claims were dismissed as inadmissible or unfounded.

Judicial flexibility is crucial when handling unprecedented situations where existing frameworks might not provide immediate solutions, the CJEU judge said.

The leniency in state-aid rules during the crisis, particularly for airlines, illustrated the balance between upholding EU regulations and addressing urgent national needs.

The EU’s firm stance on travel refunds also highlighted the commitment to consumer protection and adherence to EU laws, even during a crisis.