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COVID-19 Crisis Blog: Judicial Review in a Time of Crisis Power in the name of Emergency

21 April 2020 - As we navigate a national and global public health crisis with the spread of Covid-19 Coronavirus, we hear from our research and policy fellows, and members of our research community in a new weekly blog which reflects on these new societal challenges. This week, Róisín Costello and Conor Casey from Trinity's School of Law will look at the judicial approach to executive powers during the pandemic asking, what it will cost us in the long-term?

Róisín Costello and Conor Casey, School of Law, TCD

Economic collapse, natural disaster, pandemics, political subversion, terrorist attacks - these are just some of the kinds of events which can prompt governments to seek and use emergency powers. In practice, such situations tend to follow a similar pattern.

In response to events threatening public welfare the executive seeks extensive powers in the name of maintaining safety and order. The legislature defers to the executive’s claim of necessity and extends broad authority subject to modest oversight. In turn, the judicial branch, where the authority granted is challenged for infringing human rights, generally accepts the executive’s characterisation of the situation as an emergency and extends considerable deference to its actions.

Judicial reluctance to robustly check executive power during emergencies is not surprising. Judges can feel stifled by informational poverty and in such circumstances will defer to the executive’s claims of necessity if it thinks they possess information informed by technocratic and scientific expertise. Deference can appear the safe bet.

These kinds of crises place states and their citizens in a difficult position. If the state is unable to tackle a serious crisis, its citizens may suffer and question the state’s capacity to safeguard basic, potentially placing the legitimacy of the government in jeopardy. But affording that same government extensive powers to tackle a crisis may come at a steep cost in respect of values underpinning the political system it is designed to safeguard, including the rule of law, human rights and fundamental freedoms – placing the same legitimacy in question in the long run.

Thus far, the response of governments to the ongoing Covid-19 pandemic has fallen comfortably within this pattern. Across the world, legislatures have delegated extensive powers to Presidents and Prime Ministers to tackle the pandemic, powers which in many cases significantly curtail individual rights – restrictions on travel; stay at home orders; prohibitions on public gatherings; the suspension of evictions and rent increases; the effective nationalization parts of the economy. Some parliaments have also granted greater surveillance powers, for the purposes of ensuring compliance with quarantine measures.

While these measures clearly interact with, and in certain cases infringe, individual rights in a European context human rights protections are subject to built-in limitations which permit such infringements – in particular during times of emergency or where public health is threatened.

The example of the right to privacy is illustrative. Some governments are currently using technology to track the spread of COIVID19 using location tracking functions embedded in personal digital devices like phones and the applications which operate on those devices as well as, in more extreme examples, the use of drones to monitor individual movements. Such measures present clear reductions of individual privacy – in particular where they occur within a home.

Under ‘normal’ circumstances were such measures deployed in the EU they would be restrained by Articles 7 and 8 of the Charter of Fundamental Rights and Article 8 of the ECHR. Yet, the privacy protections afforded by both documents allow for their requirements to be relaxed to provide for the ‘general interest’ and to protect the rights of others (in the case of the Charter) and specifically to protect public health (under Article 8(2) ECHR). Protections afforded under legislative mechanisms are similarly limited -  Article 9(2)(i) of the GDPR, for example, provides that normal requirements for consent when processing sensitive personal data will not apply where the processing is carried out in the ‘public interest in the area of public health’ which is understood as including ‘protecting against serious cross-border threats to health.’

Crucially, the current pandemic offers an opportunity for both the CJEU and the ECtHR, as well as national constitutional courts, to determine the limits of the public interest, and tests of necessity in extremis. The potential for clarity in this respect is significant given the absence of a comparable emergency since the drafting of either the ECHR or Charter – and the defining cases which have emerged from emergency contexts in the decisions of national courts, most notably the US Supreme Court during the first and second world wars. How such tests are drawn will tell us a great deal about the democratic health of our institutions – and the power of human rights to effectively restrain states and protect citizens, including when the institutions of state are under strain.

unsplash-logoSebastian Pichler

Such clarity also serves an underlying need to ensure emergency measures end when their necessity does and do not become the “new normal.” This potential is frequently highlighted by reference to US emergency measures passed following 9/11, most notably the US Patriot Act, which continue to be relied on long after the urgency which they were enacted to address had passed.

The sobering reality of the history of emergency powers in constitutional democracies, is that the greatest check on their abuse is the moral and political scrutiny offered by a well-informed public. It is popular anger and pushback at emergency proposals perceived as overly oppressive, or disproportionate, which offer the weightiest check.

The judiciary may offer some guidance through the cases which will inevitably emerge from the present period, however, the immediate responsibility of appropriately balancing human right lies with the executive and, ultimately, as in any constitutional democracy the people – who will have the last word on whether governments have gone too far in tackling the crisis, or not far enough.

Róisín Costello is a PhD Candidate in Trinity's School of Law where her doctoral research argues for a rights-orientated understanding of consumer protection for the digital age. Her doctoral work is funded by the Irish Research Council and her research has been presented at Cambridge University, the Oxford Internet Institute and ICON-S. She is also an assistant lecturer at the Maynooth University, and an early career researcher at the Trinity Long Room Hub.

Conor Casey is a PhD candidate in the Law School, TCD, supported by a Ussher Fellowship. Conor's thesis engages in a comparative constitutional analysis of the the place of the executive branch in Ireland, the United Kingdom, and the United States; examining the forces and trends which helped facilitate executive predominance in each system. His work has been cited by the Irish Supreme Court and Irish Court of Appeal. Conor is currently an early career researcher at the Trinity Long Room Hub.

Recent posts in the COVID-19 Crisis Blog:

Human Rights in a Time of Crisis with Donna Lyons (14 April 2020)

Solidarity in a Time of Crisis with Rory Montgomery (6 April 2020)

Art in a time of Pandemic with Rita Duffy (1 April 2020)

Leadership in a time of Crisis with Mary Doyle (25 March 2020)

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