On July 13th, the bill for a Temporary Measures Act COVID-19 was sent to the House of Representatives (2nd Chamber). To avoid ambiguities, the law is
provided with an explanatory memorandum of 152 pages. It is a proposal with quite a few risks, even with a vast explanatory memorandum. In this article I will analyse some of the risks we are confronted with in this draft act.
The ‘law’ (temporary act) has been incorporated into a temporary new chapter Va of the Public Health Act(Wpg) which, among other things, regulates the control of infectious diseases and therefore offers the most logical place.
The law is deemed necessary, because the existing emergency ordinances (also based on the Wpg) by their nature (temporary emergency situation) should not last too long and are considered to be in conflict with constitutional rights. Where the restrictions affect the fundamental rights in the new law, proportionality and necessity must be clear (Article 58 b, second paragraph).
This law in a formal sense would thus have the democratic content that is necessary for radical measures to combat the virus. The new chapter pretends to give substance to the requirements imposed by the Constitution and human rights treaties on such restrictions, including the constitutional requirement that a specific basis for the restriction of fundamental rights should be provided in a law in a formal sense. Further it should provide the assessment of the necessity and proportionality of possible measures. Although it is stated that the law is not intended to give more powers to the Minister, but to protect fundamental rights and to provide transfer of the powers of the security regions to the municipalities, it is doubtful if there is no power creeping back to the regions and the Minister. On closer inspection, it appears that those powers are fairly easily returned to the Minister and the security regions. On top of that there is also the risk that the diversity in measures will be increased creating confusion resulting in panic and unrest. In addition to this, there is a risk that the Mayors could take far-reaching measures that constitute unacceptable interference with fundamental rights, such as imposing curfews, checks behind the front door, restriction of freedom of assembly, closing of public and private places, etc.
Temporal validity?
Interestingly, the law is considered temporary and lapses when it is no longer needed. So when there is a vaccine against COVID-19 it will be the end of the law. However, this transience is relative. In principle the validity is anticipated for six months (Article VIII) or earlier or later.
This moment is presented to the Chamber. But chapter Va also applies to the immediate threat of an epidemic (Article 58b, first paragraph) and this also includes the real chance of renewed outbreaks for instance with a possible modification of the virus? The law specifies the details of measures by ministerial regulation, because it should be possible to act quickly and variably in the necessary upscaling and downscaling of measures. The democratic guarantee is certified by opting for controlled delegation via a preliminary procedure (of 1 week!), in which the draft ministerial regulations and the order in council are notified to both Houses in advance (Articles 58c, second paragraph, and 58f, second par.). Incidentally, this democratic guarantee can also be set aside if immediate measures are required to prevent the spread of the virus and can prolong the validity of regulations.
In addition, the Minister must send the Chamber a statement, with reasons, of the measures applicable on the basis of Chapter Va (Article 58t, first paragraph)
every month, unless there is no time for this…
“This paragraph is an interesting and dangerous one in the temporary chapter.”
Article 58s, safety net, scope for mandatory corona app?
This paragraph is an interesting and dangerous one in the temporary chapter, because in this article the Minister is given the opportunity to take further measures in a
ministerial regulation outside of what is regulated in the previous provisions, which incidentally, (if possible) within 2 weeks, must be submitted to the parliament as a
bill after it has been placed in the Government Gazette. This therefore offers opportunities to take unspecified measures in all kinds of areas to combat a Corona
outbreak. That could therefore include making a corona app mandatory, although this option met with resistance from the Council of State and the Privacy Authority.
Furthermore, generally binding regulations for implementation can be assigned to the
chairman of the security regions and the mayors, including the field of (personal)data delivery.
Article 58t, Accountability and provision of information This provision concerns two sides of the spectrum of accountability and information provision. On the one hand, the obligation of the Minister is regulated in which account is given for the measures taken and the House is further informed (monthly) about the state of affairs
(paragraph 1). Furthermore, this also includes the obligation of the mayor to inform the council about the measures taken. (Paragraph 4). On the other hand, this provision regulates the obligation of mayors to provide all information that the Minister requires under this law (free of charge) as well as the manner in which that
information is to be collected (paragraphs 2 and 3). The latter provision appears to be a license for the Minister to take far-reaching measures in the field of technological coercive measures for the monitoring and analysis of personal population data when an epidemic flares up.
In short, the ‘emergency law’ has quite a few escape clauses for the Minister to circumvent democratic control, whereby a far-reaching use of the citizen’s personal
information could also be used, perhaps even through the mandatory introduction of the Corona track & trace app.
Although there is the promise by the Minister that (until now) the corona app will be voluntary it is not carved in stone, according to the law. The fact that this app is
developed by/in cooperation with Google and Apple seems not to be a problem. We all know that those companies are known as protectors of their customers’ privacy… And do not worry, in the near future, you may not even need to install an app. Apple and Google want to release a software update where you activate a function to use the tracking tool…
The parliamentary debate on this proposal will be in September, the discussion will take a long time I hope…
About the author
Robert van den Hoven van Genderen is professor AI Robotlaw at the University of Lapland, director of the Centre for Law and Internet at the Law Faculty of the Vrije Universiteit and president of the Netherlands Association for AI & Robotlaw. Before
his academic positions he worked a.o. as director Regulatory affairs in the Telecommunications industry.