The Covid-19 crisis has turned our lives inside out. It has had a profound effect on the way we, as individuals, interact with one another and with members of our communities, and, as citizens, act in society. The crisis has also greatly impacted the way our institutions and government function. A string of emergency legislations was adopted in countries badly hit by the coronavirus just a few weeks after it was declared a pandemic by the World Health Organisation on 11 March 2020. The UK passed the Coronavirus Act 2020 on 25 March 2020. UK’s closest neighbours adopted their emergency legislation around the same time. In the Republic of Ireland, the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and the Emergency Measures in the Public Interest (Covid-19) Act were passed in quick succession by the Oireachtas (Irish Parliament) on 20 and 27 March 2020respectively, complemented by a number of statutory instruments. In France, the Law No 2020-290 of 23 March of emergency to deal with the epidemic of Covid-19 was followed by a number of ordinances (more than 60 to date), measures taken by the executive between March and June, and an organic law about the QPC constitutional proceduresuspending the three-month time-limit for referral of the issue of constitutionality.
Ever since the adoption of these exceptional measures, the governments in question have been under watch. This goes without surprise. While emergency measures have generally been well received and complied with by the population, they have imposed a level of coercion and restriction on citizens’ rights and freedoms, on freedom of movement and freedom to trade in particular, that has not been observed in recent times. Governments have also been criticised, more generally, for the way they have handled the crisis, especially in their role of ensuring adequate preparation of the health system and provision of sufficient PPE. Against this backdrop, legal actions have been mounted against a number of governments and their administration. Leaving the UK case aside, this piece gives a brief overview of legal proceedings against the State in the context of the Covid-19 crisis and puts in perspective the situation, to date, in the Republic of Ireland and France.
What legal proceedings are we talking about? Here the contrast between Ireland and France is interesting. While the Irish government was involved in one, although emblematic, case for constitutional infringements, the French government has had to respond on different fronts, including on constitutional grounds. In Ireland, measures taken under the Covid-19 laws have apparently successfully curbed the spread of the Covid-19 disease because they have been widely supported and implemented by the people. However, these measures have had a detrimental effect on the, already fragile, Irish economy with significant job losses and closure of businesses (a significant number of them reported as not being able to reopen post-lockdown). A priori, legal action against State measures would not have appeared unlikely if based on constitutional rights, property rights and the right to earn a livelihood in particular. The constitutional challenge mounted by two journalists, Doherty and Waters, in mid-April against the Minister for Health while the country was in full lockdown (27 March-5 May) had the primeur in that regard. In their application for leave before the High Court, the applicants sought to bring judicial review proceedings against Irish Covid-19 laws (and regulations) on the basis of their contrariety with a number of constitutional provisions including, under Article 40 of the Constitution, the personal rights of the citizens (they also mentioned unenumerated rights of the citizens), the right to the inviolability of the dwelling, the right to assemble peaceably, as well as the right to family life under Article 41, and the right to practice religion under Article 44.2. In a scathing ruling rendered on 13 May 2020, Justice Meenan did not accept any of the arguments of the applicants. He certainly did not receive well their most controversial statement which saw in these ‘draconian, regressive and unnecessary’ governmental measures acted upon some kind of ‘fraudulent science’ the arrival of a ‘police state’ which could be paralleled with Nazi Germany. In fact, in denying the applicants a full hearing before the High Court, the judge made it clear that, while they had standing (since the restrictive measures in question were meant to affect every person residing in the State including the applicants), they completely failed to make an arguable case properly backed up by relevant facts. Noting that the applicants had ‘no medical or scientific qualifications or expertise’, he said that they could not rely on ‘[u]nsubstantiated opinions, speeches, empty rhetoric and a bogus historical parallel’ to substitute for facts. Curiously, the applicants also challenged the steps taken and procedures followed by the Oireachtas in enacting the Covid-19 laws. That was not accepted either by the High Court judge who declared that the complaints about the procedure followed by the Dáil and Seanad (Houses of Parliament) in passing the Covid-19 legislation were non-justiciable and that the court could not hear such complaints unless clearly breaching the principle of separation of powers. This last point is interesting in so far as it shows, apart from an obvious unpreparedness and amateurism, that the applicants envisaged their challenge to the Covid-19 laws as a full action against the political institutions – this is relevant as regards to what has happened in the French case to which we now turn.
The French government is still in throes with multiple legal challenges, some of them having found a recent resolution. Two types of legal challenges are concerned (see also the legal challenges before the administrative judge and ‘the importance of urgent interim orders in contesting French Government rules on Covid-19’ in the BACL blog). The first type of legal challenges is, similarly to the Irish case, based on constitutional grounds. However, the approach has been different for procedural and contextual reasons. Instead of a sweeping (although inefficient as has been evidenced) challenge, the constitutional complaints have targeted specific aspects of the enforcement of the French Covid-19 legislation, notably as regards criminal law. It should first be noted that the French Covid-19 legislation was not constitutionally challenged a priori (i.e, before its implementation) under Article 61 of the Constitution. Only its prorogued limb, the Law No 2020-546 of 11 May 2020 extending the Public Health State of Emergency, was. In its decision (Decision No 2020-800 DC of 11 May 2020), the Constitutional Council, the French constitutional court, validated several of its provisions but invalidated others and made a number of interpretative reservations concerning the processing of personal data of a medical nature for the purpose of ‘tracing’, as well as the regime of quarantine and isolation measures. It resulted that the original Covid-19 law of 23 March 2020 could be challenged on the ground of a posteriori (i.e., after its enforcement) review under Article 61-1 of the Constitution providing for the “QPC” procedure (or procedure for priority preliminary rulings on an issue of constitutionality). In its joined decision of 26 June 2020 (Decision No 2020-846/847/848 QPC of 26 June 2020 [Repeated Breaches of Lockdown]), the Constitutional Council has just validated the délit de violation du confinement(or criminal offence of violation of confinement). What was at stake was an alleged lack of precision and clarity of the new offence created by Article L 3136-1 of the Public Health Code which provides, among others, that a person fined more than three times for violation of the lockdown within 30 days is liable to a sentence of six months in jail and a fine of €3,750. Lawyers before the referring court asked a number of very legitimate questions in this regard. For instance, they noted that the legal deadline for contesting the contravention was 45 days (and increased to 90 under a state of emergency), the new offence provides for a repetition of the breach (more than three times) ‘in the 30 days’. They then wondered what would happen to an individual sentenced to prison if one or all of his tickets, challenged within the statutory time limits, were cancelled. They also asked about the definitions of ‘a compelling family reason’ or ‘a purchase of first necessity’ and their practical implications – would an outing to get a pregnancy test or hygienic protections be considered as complying with the law or be susceptible to verbalisation? The French constitutional judge ruled that the contested legislative provisions, especially the verbalisation of individuals repeatedly breaking lockdown rules, were neither imprecise nor ambiguous. In addition, the legislator, in adopting the contested Covid-19 laws defined with sufficient precision the essential elements of the prohibition of leaving one’s home when a state of emergency is declared, prohibition to which the regulatory power can make exceptions only strictly proportionate to the health risks incurred and appropriate to the circumstances of time and place. This is an important decision because during the French full lockdown (17 March-11 May), around 1.1 million fines were issued for more than 20 million checks according to the Minister for the Interior. While in the Irish case, the court scathed the applicants for their poor rhetoric and unsupported arguments, this seems to have been an opposite situation in the French case. The Court of Cassation (Supreme Court) which referred the question to the Constitutional Council to rule on its constitutionality decided to do so because it regarded as serious the allegations made by a team of well-known and well-experienced lawyers about a ‘badly crafted offence tinkered on a corner of the table’ by the French Government. Still, the result has been the same – the Covid-19 laws and governmental measures are not contrary to constitutional rights.
The second type of legal challenges that the French government is to face contains a more political element. These concern a string of more than 80 complaints that have been filed before the Court of Justice of the Republic. The Cour de Justice de la République – that Macron wanted to suppress in his aborted 2018 constitutional reform – decides on criminal liability cases for offences committed by government members while in office. This special court was established in 1993 in the aftermath of the dramatic AIDS contaminated blood case involving a number of politicians (including the current president of the Constitutional Council) and top civil servants. Proceedings can be brought by any individual or group of individuals who claim that their rights have been infringed by a government official in the performance of his duties. In that regard, it is interesting to see the diversity of group actions that have brought on behalf of doctors, trade-unions and other individuals for acts relating to the ‘endangerment of the lives of others’, ‘non-assistance to persons in danger’ or even manslaughter. These claims are meant to make the government – mainly the Prime Minister and the Minister(s) for Health – accountable for their management of the Covid-19 crisis, as regards the provision of PPE and masks in particular which proved to be a big fiasco in France.However, the outcome of these actions is likely to be disappointing. Assuming that they pass the admissibility stage, which will be decided at the end of June through the complaints commission, the filter mechanism (necessary to avoid the procedure from being used as a political weapon) from the inquiry committee before reaching to the Court itself will constitute a further hindrance, let alone a significant delay, for an elusive finding of ministerial liability.
While some have lamented that this is not the time to stymie government action about its dealing with the crisis, especially when we were at the deep end of it, these legal actions show the robustness and reactivity of our judicial systems and commitment to the rule of law. In these unusual times, they appear as a healthy (so to speak) reaction to public concerns. It has been especially significant to control the action of the Irish and French governments at a time when the political context was so tensed in both jurisdictions. During the pandemic, Taoiseach Varadkar was in fact formally carrying out his duties with his Government because a successor had failed to be appointed following the general election of February 2020. President Macron and his Government headed by Prime Minister Philippe have had to deal with the crisis literally in between two rounds of local elections, which have seen the majority in difficulty in many municipalities and took a heavy defeat on 28 June. Now that the pandemic has been slowing down in Europe (while certainly not abating in other parts of the world), a dramatic surge of new contaminations will certainly lead to another lockdown and an ‘act 2’ of government measures and hence other potential legal challenges. It is thus important to take stock of what has happened so far in this regard. The government will certainly benefit from knowing how its action to tackle the crisis has fared in what has been ‘act 1’ of the pandemic crisis. This, in turn, will ensure that the proper balance is maintained between the imposition of further coercive measures and the protection of citizens’ rights and the implementation of the rule of law. This is what one of the French lawyers was referring to in his QPC submission when he said: ‘You are not only judging the past’ but also ‘for the future’ as, he noted, ‘the repressive system remains’.
Posted by Dr. Marie-Luce Paris (UCD Sutherland School of Law)