Public law values in times of lockdown: lessons from the Belgian case
By Emmanuel Slautsky (Université libre de Bruxelles)
For the past weeks, national and international news has been dominated by a single topic: a large part of the world is affected by the pandemic of the infectious disease COVID-19, which is due to the spread of a coronavirus. In this context, extraordinary measures have been taken by states to contain the outbreak and reduce the risk of hospital overcrowding. This is notably the case of Belgium, which seems to be one of the most affected countries in proportion to its population so far. An overview in English of the constitutional law dimension of the Belgian reaction to the COVID-19 crisis is available here and here. In this post, I would like to discuss one specific aspect of the Belgian response to the virus – the enforcement of its lockdown – and highlight the difficulty to reconcile traditional public law values with the fight against a quickly evolving pandemic.
Since mid-March 2020, the Belgian attempt to limit the spread of the COVID-19 virus on its territory has taken the form, as elsewhere, of a lockdown which affects schools, many shops, restaurants, bars, etc. and social distancing measures. The lockdown and the social distancing measures have been enacted through decrees of the Minister of Security and Home Affairs (ministerial decrees of 13, 18 and 23 March 2020, as modified on 24 March, 3 April 2020 and most recently on 17 April 2020). These decrees are based on a 1963 Act concerning Civilian Protection, on a 1992 Act on the Police force and on a 2007 Act concerning Civilian Safety. The infringement of the provisions of the Ministerial decree can be sanctioned either through an administrative fine imposed by the municipality or through the criminal justice system. On 23 April 2020, more than 57.000 infringements had been officially reported by the police (on a population of 11 million inhabitants). In reality, the number is still higher as administrative fines have not been included.
In Belgium as elsewhere, debates rage around the legality and the proportionality of the limitations to fundamental rights enacted to limit the propagation of the pandemic. The wording of the Ministerial decree establishing the lockdown in Belgium is quite general and, in some cases, quite unusual. For example, people are expected to remain at home, but are allowed to go out for reasons listed in the decree such as going to a grocery store, to a cash withdrawal facility or to go for a walk or do exercise with other members of the family living under the same roof, or with a friend. Words such as “friend” are not common in (criminal) legislation and are difficult to enforce in practice.
Detailed “guidelines” (available on a website from the Federal government targeted at the general public – here) supplement the provisions of the Ministerial decree by explaining how it must be applied in practice. For example, the guidelines specify the exception for physical outdoor activities as follow: “These activities are permitted for the time necessary to do them. Once these activities are completed, it is compulsory to return home. In the context of these activities, people must keep moving. For example, it is prohibited to sit down, picnic or sunbathe in parks. Tolerance must be shown towards pregnant women and the elderly. This measure does not have to be strictly applied either to people with reduced mobility or mental disabilities”. These guidelines can be seen as an interpretation of the provisions of the Ministerial decree, but they are much more detailed than the Ministerial decree, have been updated frequently (more than ten times so far) and, on some aspects, their compatibility with the decree is doubtful. For example, the decree does not provide that people “must keep moving” when they go outside for a walk or to do exercise, as it is stated in the guidelines, and the decree mentions nothing regarding the need to show tolerance toward “pregnant women and the elderly”. As a result, the guidelines are sometimes stricter and sometimes more lenient than the Ministerial decree which, however, is the only legal authority that they would be able to rely on. In practice, the guidelines have been widely advertised and are enforced by the police and other Belgian public bodies, even when they contradict or find no clear legal basis in the Ministerial decree.
Of course, public bodies have always had to interpret statutes when they apply and enforce them and there exist plenty of administrative circulars, guidance, which interpret the applicable legislation in many fields of law. The current situation, however, is special because of the extraordinary place taken in Belgium in practice, in the fight against the COVID-19 pandemic, by the above-mentioned guidelines: for most practical purposes, the guidelines seem to be the applicable law in Belgium as far as the lockdown and social distancing measures are concerned, rather than the Ministerial decree. Together with several administrative law colleagues from all over Europe, I am a member of a research network (the “Future of administrative law” network) which wishes to promote thinking on the main current world challenges from an administrative law perspective, such as the current COVI-19 crisis, as well as thinking on the evolutions of administrative law linked to these current challenges. In line with this project, I would like to argue that the operation of the lockdown in Belgium is challenging from an administrative law perspective for two main reasons.
Firstly, the Belgian strategy to enforce Belgium’s lockdown and social distancing measures raises questions regarding its compatibility with traditional rule of law requirements. Guidelines presented by public bodies as binding for the population, published on the internet and adopted outside of any clear legal framework and with no obvious legal basis do not meet the most basic requirements of legality and legal certainty and raise issues of accountability. Enforcement of these texts by the police is unconstitutional as police force cannot be deployed to enforce documents with no legal status. The lack of legal basis of the guidelines is also officially acknowledged by Belgian officials when they accept that only infringements to the Ministerial decree enacting the lockdown can lead to the application of criminal or administrative sanctions. This has been confirmed in Parliament by the Minister competent for Security and Home Affairs and it is also the position of Belgian prosecutors. Still, the guidelines remain online in their current “binding” wording and keep being widely advertised.
At the same time, however, the Belgian situation points to the limits of normal public law mechanisms in the fight against a quickly evolving pandemic, such as the COVID-19 pandemic. The “guidelines” have taken so much importance in the operation of the lockdown in Belgium because they can be updated quickly as the situation evolves (and more quickly than Ministerial decrees can be) and because they can provide a degree of practical details that would not be found in Ministerial decrees and which is probably necessary for the lockdown and the social distancing measures to be correctly understood and applied by the population. In the current circumstances, furthermore, there is no possibility for courts to develop quickly enough a detailed interpretation of the applicable Ministerial decree, which would be the more natural way for the law to operate. In other words, for their lack of virtue from a public law perspective, there may also be good functional reasons for Belgian public authorities to implement the lockdown through “guidelines” with no clear legal status, if this is necessary to fight the pandemic effectively.
This brief account of the Belgian situation raises the question whether new administrative law mechanisms should be imagined to better articulate rule of law requirements with the need to address societal, economic and social crises. Crises, like this covid-19, may (or may not?) call for appropriate responses to address their intensity, mutability, and scope. How to find a suitable balance between individual freedom and collective well-being is an immense challenge for public lawyers. In Belgium, at least, this is a topic which will need to be carefully considered when times get better, as the equilibrium between the needs of public action and basic rule of law requirements has not yet been achieved.
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