For the past year, the legal framework (as detailed in Part II of the Oxford Compendium report on Italy) that the Italian Government used to face the pandemic has been characterized by the recourse to statutory decrees (decreti legge), which then delegated to the Prime Minister the power to enact decrees ('PM decrees') to take emergency measures (including lockdown measures). This mechanism has given rise to a specific set of issues, primarily due to the difference between the way statutory decrees and PM decrees are adopted. Whereas the former sources of law are issued by the President of the Republic (who thus plays a supervisory role) and are reviewed by Parliament as it converts the decree into a statute, PM decrees do not entail any formal means of presidential or parliamentary scrutiny. Complaints were immediately raised by opposition parties, as well as by key parliamentary figures, which requested the Government to re-establish a dialogue with Parliament (Part III). The executive did, to some extent, remedy these shortcomings, but the modus operandi remained the same as PM decrees were confirmed as the preferred legal instrument.
However, things may be changing as the Government formalized its commitment to avoid the use of PM decrees, resorting instead to the legislative process laid out by Article 77 of the Constitution. It provides that the Government may issue statutory decrees, which must eventually be converted into statutes by Parliament. This change of pace was achieved thanks to a recommendation (ordine del giorno) advanced by an MP during the conversion procedure of the Statutory Decree N. 2/2021, which was accepted by the executive. Cabinet’s commitment has been proven by the fact that the last PM decree dates back to 2 March 2021, and the latest measures have been entirely adopted through statutory decrees.
Alas, all that glitters is not gold! In Statutory Decree N. 44/2021, the Government included a provision that allows it to derogate from the rules established by that same decree by merely adopting a Cabinet decision. In other words, the Government arrogated to itself the power to derogate from specific provisions of the statutory decree (relating to the measures applicable to 'orange zones') without necessarily using another primary source of law (ie another statutory decree or a statute). Needless to say, the provision raised serious concerns, mainly because it seemed to blatantly conflict with the basic principles that characterize the relationship between the sources of law. Furthermore, the provision was particularly vague. It provided that the executive could derogate from the rule any time it deemed it necessary depending both on the epidemiological situation and the vaccination campaign. Beyond these two matters, there were no specific criteria that had to be taken into account in order to justify or guide the Cabinet’s decision, leaving it completely to its own discretion.
Although the derogation provision has lost its effects from 30 April 2021, and there are no signs of a similar provision in the most recent Statutory Decrees N. 52/2021 and N. 56/2021, it is reasonable to presume that the executive did not take these powers in an exercise of bad faith, but rather because of the urgency of the response required by the pandemic. This is precisely the purpose PM decrees served from the very beginning of the health emergency and the reason why we should reconsider whether they should be entirely put aside. Doing so may ironically create opportunities for unsuitable innovations that not only entirely evade the slim forms of parliamentary scrutiny that have evolved so far in relation to PM decrees, but that are also intrinsically inadequate to lay out rules and guidelines applicable to the entire territory.