Countering the Spread of COVID-19 by Means of Recommendations and its Constitutional Implications

Iain Cameron & Anna Jonsson Cornell

Uppsala University

The COVID-19 pandemic led to a large number of countries taking sweeping executive powers to counter the spread of the virus. The debate has thus often been about whether such emergency powers have satisfied the legality, necessity and proportionality principles. Another angle to the debate has been about the form in which powers have been exercised and the parliamentary accountability for this. In the UK, for example, there is a general Act dealing with emergencies, the Civil Contingencies Act 2004, which provides for a structure for control and parliamentary accountability. However, this Act was not invoked. Instead, a special, very detailed Act was passed hurriedly by Parliament with less onerous accountability requirements. A similar accountability debate occurred in France, regarding the sweeping special Health Emergency legislation enacted, instead of using the pre-existing legislation. Sweden serves as another interesting example in that it primarily used soft law measures such as recommendations to counter the spread of the disease, which raises a particular set of concerns related to parliamentary accountability. 

This blog article focuses on the constitutional law issues arising from the use of recommendations rather than legally binding rules. We rely on the Venice Commission’s Rule of Law Checklist in our analysis. 

Sweden is a useful point of reference. This is because while some legally binding powers were triggered and new laws were passed, the main Swedish policy response was to rely upon recommendations and voluntary measures on the basis that these are in general more effective in changing behaviour and hence more sustainable. There are major differences of opinion in Sweden today as to whether this approach was in fact (sufficiently) effective. 

Leaving aside the issue of effectiveness, are there any constitutional legal problems with a policy that relies largely upon recommendations? We would say yes. The list of problems that we identify below is not intended to be exhaustive. 

The first problem, we would say, stems from the principle of legality and relates to differences as regards the legal basis and the procedure to be applied before the adoption of a norm or a recommendation. A norm in public law, especially one which involves the exercise of power vis-à-vis individuals, should have an explicit and constrained legal basis. A recommendation, however, will usually be seen as less serious and not legally binding. It might be issued by a governmental body as long as it lies within the body’s general area of responsibility. In a Rechtsstaat, regulating issues of major importance to individuals is generally regarded as requiring a statute passed by the legislature, even if more specific implementing provisions can be delegated to the executive and sub-delegated to administrative agencies. However, while parliamentary committees may be able to examine the recommendations issued by state bodies as part of their general supervisory power over government, parliamentary approval procedures presuppose legislative bills, or, in those cases where scrutiny powers over government ordinances have been retained, delegated legislation. Even in cases where legislative power is delegated lower down in the administrative hierarchy, to agencies or local authorities, good practice is to require some form of consultative procedure before the norm is promulgated, and some form of internal pre-scrutiny. No such requirements might apply before recommendations are communicated.

Legal certainty is another aspect of the principle of legality. Lawyers want to know what is legally binding and what is not, and where the norm is to be placed in the legal hierarchy. The coherence of the legal system is also important. In a number of countries with regional autonomy, problems have arisen during the pandemic where overlapping and partially inconsistent requirements have been placed on individuals. The Venice Commission’s Rule of Law Checklist poses the following questions as regards foreseeability (heading 3 of the overarching principle of legality): “Does new legislation clearly state whether (and which) previous legislation is repealed or amended? Are amendments incorporated in a consolidated, publicly accessible, version of the law?”. It poses the following questions as regards stability (heading 4): “Are laws stable and consistent? Are laws stable, to the extent that they are changed only with fair warning? Are they consistently applied?”. All of these requirements should arguably apply to recommendations too when they have a significant impact on rights and freedoms of individuals.

An important part of the Checklist is the availability, in practice, of effective remedies, in particular, review before the administrative and/or ordinary courts. But, like parliamentary scrutiny, judicial review can be short-circuited when dealing with recommendations because judicial review is of binding rules. The function of the courts will usually be limited to maintaining the boundaries between binding and non-binding norms. Are the courts able to determine that a recommendation directed towards other public bodies, individuals, legal persons is, in substance, a decision, and thus amenable to judicial review? And, in which case, who is to be regarded as sufficiently affected by a recommendation to have standing to raise this issue before the courts? These are important questions from a constitutional law perspective that also requires taking into consideration the effect of recommendations on rights and freedoms of individuals. 

Recommendations may, in practice, undermine or be in contradiction with, the content of legal rules, in particular safeguards or legal rights. In many countries hard hit by the virus, difficult ethical and legal issues arose when intensive care facilities were, or risked being, overwhelmed. When deciding whether or not to give a patient intensive care, a prognosis has to be made about the likelihood that the patient will survive intensive care, and make a full, or at least, some sort of, recovery. In Sweden, for example, the Health Care Act (2017:30) and the Patient Act (2014:821) have always been interpreted so as to require an individual assessment of medical care needs and that people who have greater needs should receive priority over people with lesser needs. Accusations have been levelled at some Swedish health regions that, during the first wave of the virus, policies were put in place that provided for a different type of prioritization. The Swedish Health and Social Care Inspectorate concluded – disputed by the regions – that doctors on many occasions did not visit the elderly care homes, that they were not familiar with the persons and their medical records, and that they instead had made standardized assessments, relying on non-medically trained staff at the care homes. The consequence was that some – it is unclear how many – elderly patients received palliative care, instead of hospital care. 

Recommendations can, in practice, achieve a binding legal force. This can occur in a number of different ways, for example where a business is subject to a generally formulated legal duty, the fulfilment of which is subject to supervision by a public authority, exercising a degree of discretion and the power to issue fines. A recommendation may give guidelines as to how this duty can be fulfilled (in practice, purport to specify parts of the content of this legal duty). A concrete illustration here is the discretionary competence of a local authority to issue, amend, and withdraw a licence to serve food or alcohol, or shut down another type of business, where recommendations on social distancing, seating, etc. are not being followed. When such recommendations are unclear or leave a large room for discretion legal certainty and hence the principle of legality might be at jeopardy. 

Another type of issue arises as a result of the private-public interface. Where recommendations have been issued to minimize the spread of the virus on public transport, and where buses, trams, or trains are operated by a privately owned company (a common construction in many states where deregulation of the public sector has occurred) then the conditions that the company sets to comply with the recommendation (mask-wearing, etc.) will apply by means of the law of contract. This company may have a monopoly on all public transport in the area. Here we would note that the Venice Commission Checklist poses the following question as regards the delegation of public power to private authorities (legality principle, heading 8); “Does the law guarantee that non-State entities which, fully or in part, have taken on traditionally public tasks, and whose actions and decisions have a similar impact on ordinary people as those of public authorities, are subject to the requirements of the Rule of Law and accountable in a manner comparable to those of public authorities?”

The final issue we would like to raise is the question of recommendations issued by public authorities which are implemented by privately owned bodies. The ownership of the “public space” (shopping malls, etc.) is an ongoing debate in many states, which the pandemic has reinvigorated. More generally, one can raise the question of how to deal with the imposition of mask or vaccine “recommendations” on customers visiting shops or using privately owned transport (airplanes, etc.). To forbid this will normally require legislation.

In conclusion, the soft law approach to dealing with emergencies raises a number of fundamental constitutional law questions, which we have illustrated above. When analyzing the impact of recommendations and other soft law tools on for example separation of powers, the prerogative of the legislature, and the protection of rights and freedoms of individuals, we need to take into account the actual effect of such measures, which in its turn requires that the longevity of the measures be considered.  Sufficient time has now passed since the pandemic broke out and hence the time is ripe to make such a comparative analysis. 

Iain Cameron is Professor in International Law at Uppsala University, Sweden.

Anna Jonsson Cornell is Professor in Comparative Constitutional Law, Uppsala University, Sweden.

Suggested citation: Iain Cameron and Anna Jonsson Cornell, ‘Countering the Spread of COVID-19 by means of Recommendations’ IACL-AIDC Blog (14 September 2021) https://blog-iacl-aidc.org/covid19-future-constitutionalism/2021/9/14/countering-the-spread-of-covid-19-by-means-of-recommendations-and-its-constitutional-implications.