Why is the corona law necessary?
Because there is currently a lack of democratic control over corona policy. Since the arrival of the corona virus in the Netherlands, the many measures against the virus have been cast in the form of emergency regulations. The presidents of the 25 Dutch security regions, unelected mayors, are introducing these regulations on behalf of Minister Hugo de Jonge of Public Health.
The parliament has no say in that process. This applies to the House of Representatives and the Senate, but also to local councils. In the first panic about the virus, there was a lot to be said for that – action had to be taken and a little quickly. But the longer the crisis lasts, the more the lack of democratic safeguarding begins to weigh on us.
In addition, the emergency ordinances are, as the name implies, intended for situations of acute need. For example to prevent riots during a match between two rival football clubs. The emergency regulations are not suitable for establishing the ‘new normal’, lawyers soon said. The long-term limitation of fundamental rights such as freedom of association (by limiting group size) requires heavier artillery: a law.
A law, yes. But not this one, it sounded in June before the bill had reached the Lower House. There was fierce criticism of, among other things, the term of the law (one year) and the power of ministers to govern ‘by decree’ – the House was only allowed to have its say afterwards. The ‘enforcement behind the front door’ also drew fire: in the first bill, the police could force a meter and a half into your living room.
The corona law even became the central theme of demonstrations. In The Hague, thousands of people at various times protested against what they believe was dystopian corona measures. The fact that the law gave ministers carte blanche to take other, as yet unforeseen measures in the fight against the virus in the future, was grist to their mill.
There was also great disgust at the Binnenhof. The House felt put under great pressure by De Jonge to have the law take effect on 1 July, a much too optimistic schedule. The opposition continued to resist, bolstered by the highly skeptical voices from the coalition parties themselves. This resulted in the House not debating the corona law until Wednesday and Thursday, more than three months after the planned effective date.
What does the corona law say?
Broadly speaking, the corona policy that we already know. All people must keep a safe distance from each other. It is not allowed to stay in one group with more people than the cabinet orders. Public and private spaces can be closed, and whoever manages that space is responsible for complying with the corona rules. Events can be called off. De Jonge can limit the number of visitors for residents of care homes if a revival of the virus gives cause to do so. Schools and daycare centers can be closed. Passenger transport may be shut down or restricted.
People with contact professions must fear a new work ban, as in the first wave, among others, hairdressers, beauticians and catering staff. Hygiene measures such as washing hands or cleaning equipment at a location may also be mandatory. More striking is that De Jonge has left open the possibility to prescribe protective equipment. With the mouth mask, the cabinet has so far taken urgent advice. This may therefore change in the near future.
The cabinet also maintains confidence in local customization. The approximately 350 mayors will play a more important role in the continuation of the crisis. The cabinet can give them the power to designate places themselves where certain measures do or do not apply. That way, a local revival of the virus can be suppressed more quickly, is the hope. The mayors can only switch measures ‘on’ or ‘off’, and therefore not tinker with group sizes and masking duties without consulting The Hague.
If the situation becomes too serious, the cabinet can still decide that the mayors must listen to the chairpersons of their overarching security region. The 25 chairpersons will have a coordinating role in coordinating local decisions. None of the mayors may still issue emergency ordinances related to the corona virus: the Hague is about policy.
What has changed?
More than De Jonge would like. Eight parties (the coalition plus PvdA, GroenLinks, 50Plus and SGP) found each other in their aversion to the original bill, in particular the far-reaching power of the government. Together they negotiated a series of amendments in recent weeks that radically change the character of the corona law. The cabinet itself also made some adjustments in response to criticism from (local) politicians, lawyers and the Council of State.
The most important changes limit the specific direction of the cabinet and strengthen the position of the parliament. Parliament does not approve cabinet decisions after, but before they take effect. From now on it will go as follows: the minister announces a corona measure. Parliament then has a week to vote on the measure. If the House of Representatives does not agree during that time, the scheme will lapse.
The cabinet can only deviate from that path and initiate a measure immediately in a ‘very urgent circumstance in which immediate action must be taken to limit danger’. The minister in question must explain why this is the case. If the House of Representatives does not approve within a week, the scheme will expire. Furthermore, ministers are not allowed to take measures that are not already mentioned as a possibility in the corona law. No carte blanche, therefore.
Also, the term of the temporary law is not a year or six months, as a later offer from the cabinet was, but only three months. According to the eight cooperating parties, ‘fundamental freedoms’ would otherwise be curtailed for too long. Parliament must then agree to an extension of a maximum of three months each time. In addition, new advice must be requested from the Council of State.
Another amendment stipulates that the cabinet must test future measures against the consequences. A concrete example is the closure of the schools in March. The cabinet took this decision mainly under social pressure: it was unclear how much impact the school closure had on the spread of the virus. New measures must always offer a ‘realistic perspective’ of a reduction in infections.
Every month De Jonge has to send an overview of all measures and their reasons to the House. The municipal councils are also getting more grip on the corona policy. They can ask not only their own mayors for information and explanations, but also the presidents of their security regions.
The House also built in security in other areas. In order not to let the elderly get together again in care homes, a right applies to a visit by at least one family member or other close relative. Only in exceptional cases can be deviated from. The reduction of the fine to 95 euros for not keeping sufficient distance will also be given a place in the law. Offenders are not given a note on their criminal record.
In response to the loud protests, De Jonge himself was already driving sharp edges of the law. ‘Enforcement behind the front door’ is no longer an option: domestic rights are explicitly protected. De Jonge also removed the corona app, which according to critics deserved its own treatment in parliament, from the previous bill. The app, which should help with the source and contact investigation, was adopted by the Senate on Tuesday.
Is the law good enough now?
That question is for Wim Voermans. The constitutional law professor at Leiden University was one of the most outspoken haters of the original bill. The lack of public participation brought us ‘back to the time of King William I’, he grumbled.
What does Voermans now think of the amended law? ‘I am completely satisfied. All objections I had have been resolved by the amendments. That is really well done. It rarely happens that the House takes the sting out of a bad bill so efficiently. ‘
He compliments the coalition and opposition, which ‘jumped over their own shadows’ and together took control. ‘It rarely happens that the House acts as an institute and draws a line with the government. That makes you happy. The House appears to have an institutional conscience. ‘
The need to drastically overhaul the bill “was also felt by the coalition parties”, says GroenLinks MP Kathalijne Buitenweg. ‘The executive branch was mainly concerned with arranging everything as efficiently as possible. There was the idea that consent from parliament was less necessary. The parliament had to stand up for its own rights. ‘
Maarten Groothuizen, Member of Parliament for D66, thinks it is ‘great that we have succeeded in reaching agreements with eight parties about something that has such a profound effect’. ‘The current situation with the emergency regulations was not tenable. Because of this law we can now have a discussion about the proportionality of measures. At the place where that discussion belongs: parliament. ‘
Of the eight parties, only the SGP still seems to have doubts about its vote, now that the cabinet seems to be planning to subject churches to a maximum group size. Even without the SGP, the alliance represents 101 seats in the House of Representatives. The vote in the senate is not a problem either.
Minister De Jonge is therefore heading for a relaxed debate: he will defend his corona law with ease, although it is a drastically different law than he had in mind.