The pandemic is being fought by the Government and the communities at the blow of the norm. Resolutions, orders, decrees, decree laws and laws with which to cover the sanitary, economic and social measures agreed to deal with the virus. The result 12 months later is a dense legal network already made up of more than 3,000 regulations that continues to grow every week.
Experts admit that the exceptional nature of the situation requires a changing legal framework even though it may generate insecurity, but they are calling for legal reforms to resolve loopholes that have dragged on for a year and that could have simplified the regulatory mess.
Governments’ fight against COVID-19 has had a lot of trial and error. It began with measures that seemed specific, such as closing the borders to the citizens of the first countries conquered by the virus or closing the schools , and, in a matter of days, the Spaniards were confined in their homes by means of a decree that activated by the first time the state of alarm for the entire national territory. What was to be a two-week lockdown turned into a three-month lockdown.
During that first state of alarm, far from being able to consider the first phase of the health crisis controlled, its economic and social aftershocks were already getting out of control, forcing the central Executive and the regional governments to approve measures against the clock to face to the virus in all areas.
The three crises are still active today and governments continue to add threads to that legal network that began to weave a year ago. According to the count carried out by EL PAÍS with the data collected by the Official State Gazette (BOE), the central government, the 17 communities and Ceuta and Melilla have approved since March 2020 more than 3,000 regulations to fight the pandemic.
The three crises are still active today and governments continue to add threads to that legal network that began to weave a year ago. According to the count carried out by EL PAÍS with the data compiled by the Official State Gazette (BOE) , the central Government, the 17 Communities and autonomous cities and Ceuta and Melilla have approved since March 2020 more than 3,000 regulations to fight against the pandemic.
The momentum of initial confinement
In the first months, the State assumed almost all the responsibility and, with it, most of the legal production, which amounted to more than 200 anticovid regulations between March and May . Since then, the central government has issued another hundred, including two laws (the law on procedural and organizational measures to deal with covid-19 in the area of the Administration of Justice and the law on urgent measures in the field of agriculture and food ).
Also 22 decree laws and 13 decrees. Some regulate health aspects (such as the decree law of June 9 on urgent prevention, containment and coordination measures) and others, the majority, try to contain the effects of the virus in sectors such as transport, agriculture and energy, or regulate aid social.
As of the summer, when the communities assumed, first, the management of the de-escalation and, later, the powers to modulate measures after the state of alarm approved in October , it was the regional governments that took over the bulk of the regulatory development.
Together they have approved more than 3,000 orders, resolutions, decrees, decree laws and laws since the pandemic began, although production has multiplied in recent months. The most prolific communities have been Castilla-La Mancha, with 672; Andalusia, with 351; and Madrid, with 246. Those that have passed the least regulations are the autonomous cities of Ceuta and Melilla, with 39 and 76 respectively; La Rioja, with 61; and the Basque Country, with 41.
These differences already reveal the disparity of criteria that exists when regulating decisions. Some, such as Andalusia and Castilla-La Mancha, have decentralized the regulations within their own territory, which has resulted in each measure being translated into as many regulations as there are provinces, specifying the decisions based on the situation of each territory.
At the opposite extreme, Castilla y León, the community with the most provinces, but which has centralized regulatory production and has only issued 88 (in the count, government agreements have been excluded, which in this community amount to 64).
The risk of overregulation
The risk of hyperregulation. “Decisions had to be made as risks were generated and I believe that, in general terms, the most convenient thing has been done within the improvisation that the circumstances demanded,” says Lourdes López, professor of Labor and Safety Law Social at the University of Cantabria.
Like her, most of the jurists consulted consider that normative hyper-regulation tends to generate confusion and legal uncertainty, but they admit that the situation is so exceptional that it cannot be measured with ordinary criteria. “Perhaps the biggest mistake has been in communication with the public,” warns López.
Ana Carmona, professor of Constitutional Law at the University of Seville, very critical of the technical quality of the regulations that governed the first months of the pandemic, believes that the Government has been “fine-tuning” its production and has known how to adapt to a changing situation .
The delegation of powers to the communities has made it possible to adapt the measures to the situation of each territory, but experts agree that the management of this governance has exposed large legal and regional gaps.
We believed that we had better resolved the distribution of powers between the State and the communities, ”maintains Professor López, who alludes to the multiple confrontations between the central and autonomous governments each time they try to impose measures that some regions do not share.
The latest episode, the threat of rebellion in Madrid against the perimeter closure on the San José and Holy Week bridge, is the consequence, according to experts, of one of the great legal errors made by the Government in the year of the pandemic: not reforming the organic law of 1981 that regulates states of alarm, exception and siege, nor the law of special measures in public health in 1986. These two reforms, the jurists agree, could have saved many other regulations and avoided doubts that have had to settle the courts.
“How can we still be discussing whether Madrid can reject the closure of the communities at this point!” Laments Agustín Ruiz Robledo, professor of Constitutional Law at the University of Granada. “We still do not know if what the Interterritorial Health Council says is binding. And we do not know because the decree of state of alarm does not clarify it, that it could have.
Or to have reformed the organic laws in which these decisions are protected and to clearly say when competences can be delegated to the communities and what decisions they can take and which ones they cannot, “says the professor.
The legal framework designed by the communities abounds with lower-ranking norms (resolutions and orders) which, paradoxically, have been used in many cases to regulate the most restrictive measures of rights. In others, these restrictions were specified with agreements that cannot even be considered norms and that, as Lorenzo Cotino, coordinator of the Observatory of Public and Constitutional Law and covid-19, warns, are usually included in the regional official gazettes in the section “other provisions” .
Jurists understand that, even reluctantly, it has been admitted that communities can “modulate” the restriction of rights by delegation of the Prime Minister, although some such as Ruiz Robledo disagree with this interpretation and consider that, with the law of states of alarm Currently, the central executive can only delegate the management of a health crisis if it affects a specific territory, but not, as in this case, the entire country.
Restriction of rights
Doubts are triggered when regional governments dictate regulations that limit freedoms under the protection, almost always, of the 1986 law on special public health measures. “One thing is governance and another that communities can restrict fundamental rights.
The law says that they will be able to adopt ‘the measures that are considered necessary’ and it has been decided that everything fits there ”, regrets Cotino, who recalls that the courts have had to intervene on several occasions, especially in the months in which they do not the state of alarm prevailed. “It was seen that it was chaos and it had to be decreed again,” says Ana Carmona.
Jurists fear that this situation could be repeated as of May 9, when the current state of alarm ends. It is too early to know where the health crisis will be, but it is starting to be too late to address the legal reforms that most experts see necessary.
“We can continue to improvise”, Ruiz Robledo warns, “but, when the public powers get used to kicking the Constitution and the laws in things in which we all agree that it can be done because we are in the middle of a pandemic, then They will give them for things in which we no longer agree so much ”.