Courts as co-legislators in Spain: a problematic procedural reform to control health restrictions

By Alba Nogueira (external contributor)

Tomorrow, on Sunday 9 May 2021, the nationwide state of alarm declared by the Spanish Government back on 25 October 2020 will come to an end, and restrictions adopted on this basis will cease to apply. The Spanish Government has announced that it does not intend to resort once again to a state of alarm in the future, which has given rise to a high degree of legal uncertainty and discussion about the legal basis, the limits, and the mechanisms of control of the restrictive measures that will be adopted from 9 May 2021 onwards. To face this situation, the Spanish Government has just passed a targeted reform of the procedural rules governing the ex ante judicial review of some of these restrictive measures. As will be argued below, this is a regrettable move: it will probably not solve the legal uncertainty problems it tries to address and will distort the role that the judiciary is called on to perform under the Spanish constitutional order.

Most of the measures restricting rights adopted in Spain against Covid-19 have been based on two states of alarm (from March to June 2020 and from October to May 2021) declared by the Spanish Government, a constitutional mechanism of exception (Article 116 of the Spanish Constitution) which allows certain restrictions of rights for health emergency situations by declaration of the Government, subject to parliamentary control but without ex ante judicial control.

However, in the absence of a state of alarm (ie in the period from July to October 2020 and from 9 May 2021 onwards), the adoption of restrictive measures necessary to fight the pandemic (lockdowns, restrictions on mobility, and so on) is to be carried out by the Autonomous Communities (‘ACs’) on the basis of Organic Law 3/1986, which contains relatively broad provisions for the adoption of health measures affecting fundamental rights. As further explained in the Oxford Compendium Country Report for Spain, these administrative measures need to be confirmed (‘ratified’) by courts before they can be enforced. Although there is a doctrinal debate on the excessively general wording of Organic Law 3/1986, the fact is that during the months in which the state of alarm was not in force, it was used by all ACs in order to adopt health measures, which in many cases involved severe restrictions of fundamental rights and were for the most part ratified by courts.

However, the discrepancy between judicial decisions (which in some cases rejected the restrictions on rights and in others denied the possibility of enforcing certain measures) led to an initial reform of Law 29/1998 of 13 July regulating Contentious-Administrative Courts through Law 3/2020 of 18 September 2020. This reform had one main objective: to reduce the number of judicial bodies that could hear these cases (previously any unipersonal administrative court), thus concentrating the 'ratification of general measures' (ie those applicable to a large number of people) in the 17 regional High Courts of Justice (‘HCJs’), to reduce the disparity of criteria in judicial decisions. Consequently, following the entry into force of Law 3/2020, the Spanish legal order differentiated between the 'old' ex ante ratification of individual measures (that is maintained in unipersonal courts) and the 'new' ratification of general measures (that is attributed to the HCJs). The point of the reform is to produce a change in the nature of this mechanism of ex ante judicial review. Previously, judges ratified urgent health measures that affected fundamental rights (Article 8(6) of Law 29/1998) because there was an administrative decision on health issues affecting fundamental rights and a resistance from individuals or groups: transfusions to Jehovah's Witnesses, forced feeding, psychiatric internment, and so on. Judges decided on the impact on specific rights of individuals and on the proportionality of the health measures. By distinguishing between individual measures and general measures (either of regulatory nature or not), the HCJs will be able to decide ex ante, and without anyone having indicated that their fundamental rights are affected, whether they consider the measures proportionate. This constitutes a sort of appeal without an appellant, which leads to an abstract judicial review of legality and puts the judiciary in the inappopriate role of a co-legislator. This second aspect of the reform is the most regrettable one, and its origins can partly be found in the fact that many ACs had indiscriminately submitted both general and individual measures, including regulations, to prior judicial ratification. It is worth mentioning that Spain has a preferential procedural channel for ex post appeals with regards to the protection of fundamental rights, which allows for the judicial review of general measures with a relatively quick resolution period. Shorter, special deadlines could also have been established for an appeal through this channel, as it is already the case with the right of assembly.

The procedural reform of September 2020 did not achieve the intended objectives, because some HCJs did not ratify some regional measures (such as limiting the assembly to a certain number of people, prohibiting visits to elderly people in residential homes, closing perimeters, etc), provoking the criticism of regional authorities who demanded the maintenance of the state of alarm to avoid judicial setbacks, as measures adopted under a state of alarm are not judicially controllable.

The anomalous judicial activism of some HCJs (eg Basque Country) and the absence of deference towards administrative decisions motivated by serious and evident epidemiological emergency has led the Spanish Government to approve a new procedural reform (Royal Decree-Law 8/2021 of 4 May 2021), just before the end of the second state of alarm (9 May 2021). Royal decree-laws are Acts of Government with the same rank as Acts of Parliament and can be adopted in situations of ‘extraordinary and urgent need’ (Article 86 of the Spanish Constitution). This recent amendment introduces the possibility of a cassation appeal to the Supreme Court in cases concerning the ex ante judicial control of special health measures adopted on the basis of Organic Law 3/1986. Once again, the aim is to centralize decision-making with the highest judicial body to avoid contradictory decisions.

However, there are also clear problems with this reform. On the one hand, the cassation appeal has a doctrinal unification function that will be difficult to perform in this case, since the Court must hear different regional measures depending on very different epidemiological situations. The cassation appeal will therefore not exercise a nomophylactic function, since it will inevitably be casuistic and depend on the specific health measures and data of each AC.

On the other hand, this reform embodies a misunderstanding regarding the role of courts, which should not be used to preventively assess the suitability of general measures and regulations without any interested party complaining for a breach of their rights. This reform confirms the Covid-19 induced trend in Spain to construe courts as actors performing a preventive participatory role in the adoption of general measures concerning health protection, as if the judiciary was a sort of consultative body of the Administration that participates in its regulatory processes. This has been pointed out by the HCJ of Aragon in a question of unconstitutionality against the reform of September 2020, currently pending before the Spanish Constitutional Court.