Privacy First comments on Corona law
Through a massive amendment to the Public Health Act, several corona measures are in danger of soon becoming permanently legally enshrined. Today, Privacy First sent on this a letter (pdf) to the House of Representatives:
It was with great concern that Privacy First Foundation noted the proposed amendment to the Public Health Act, Wpg (36194, Corona Act). This legislative amendment introduces a new legal framework with various possible measures to control an epidemic. This while the social necessity, proportionality, effectiveness and impact of the measures in the context of the recent corona epidemic have not been evaluated to date. Privacy First considers it non-existent that such measures could already be legally enshrined as long as their human-rights tenability is unknown. Moreover, the bill introduces some elements that do not belong in a free democratic constitutional state with full parliamentary control. Below, we briefly outline our current considerations and main current objections.
Clashing fundamental rights?
In line with our mission, Privacy First has always adopted a broad interpretation of the right to protection of privacy and bodily integrity, where relevant also in relation to other human rights, including in this case the right to (the highest possible degree of public) health. In this context, it also applies that every country is obliged to take measures to combat an epidemic or pandemic. Good public information and facilitating opportunities for prevention are crucial in this respect. In our view, there should never be any form of coercion, repression or social exclusion. This except for very extreme situations, for which the current Wpg already offers room.
However, social and political fears lead to collective awareness narrowing and unbalanced or damaging policies, where "well-intentioned" measures to protect one human right may come at the expense of countless others. The trick therefore always remains to continue to implement all relevant human rights coherently. In doing so, one human right rarely prevails over another. This is also true in the current context. In our view, therefore, there is no question of conflicting fundamental or human rights.
A new legal framework?
To combat corona, temporary emergency ordinances were partly used in the Netherlands in the past two years. However, this was contrary to the Constitution, as the Constitution requires that any invasion of privacy must be based on a law in the formal sense. The Temporary Measures Act COVID-19 (Twm), however, in May 2022 not extended by the Senate, leaving a "legal vacuum" since then. As corona recedes from the world, the social necessity and proportionality (and hence the legal tenability) of a new, permanent Corona law becomes ever more tenuous. At the same time, it could be argued that one should be prepared for an uncertain future, including the lessons learned in recent years. However, those lessons are currently unclear, as no proper evaluation of the effectiveness and impact of all corona measures of recent years has yet taken place. This opposes a structural legal framework as envisaged in the current bill, as the necessity, proportionality and effectiveness of various measures have not been demonstrated to date. Ditto for any harmful side effects these measures have had. The corona measures were largely a social experiment. The proposed Corona Act codifies and legitimises this experiment, as it were. However, human rights do not lend themselves to experimentation: without demonstrable necessity and effectiveness, any infringement is unlawful.
The current bill is therefore premature and should be withdrawn or at least put "on hold". However, should the House decide to continue consideration of the bill, the final law should include the best possible democratic and rule-of-law safeguards, clear frameworks, clear responsibilities and balanced measures that have been thoroughly considered.
Curfew, coronapas and 2G policy rightly off the table
First of all, we would like to mention some bright spots in the current bill, namely that it deliberately does not provide a legal basis for possible "behind the front door" measures (indoors), no future reintroduction of curfews, no corona pass (coronapas) and thus no so-called 2G policy, which would lead to a split in society. Such measures thus appear to be off the table for the time being, in line with Privacy First's critical views in recent years on the curfew, test certificates and the coronapas. However, should these measures still be introduced (again), Privacy First reserves the right to challenge this in court and have it set aside on the grounds of conflict with international and European law. This also applies if coronapas will be reintroduced in certain sectors of society.
Carte blanche under new section 58d Wpg
Privacy First's biggest objection to the current bill is the new section 58d Wpg. Under this provision, almost any measure can be introduced immediately in an "emergency situation". What possible new measures could fall under it is completely unclear. Could this include curfews or coronapas? Such a broad, vague "carte blanche" provision provides every opportunity for future arbitrariness and abuse of power. This has no place in a free democratic constitutional state and violates the requirement of legal certainty. This provision should therefore be deleted. Privacy First would like to remind you here that the proposed Section 58d Wpg resembles the infamous Section 58s in the Twm. After much criticism, that provision (58s) was deleted unanimously in October 2020, but is now thus quietly back. It is up to the Chamber to consign this provision to the scrap heap of unsound legislation once and for all. Failing that, Privacy First expects the Senate to bring it about.
Lack of parliamentary control
Under the current bill, although the House of Representatives seems to have a "right of veto" on activation of measures (see Art. 58c), how strong does this right of veto work in practice in a procedural and temporal sense? In the previous Twm, there was often a lack of clarity and incorrect perceptions about this. Also, Privacy First has concerns about the overly broad ministerial powers offered by the bill. After all, potential human rights violations should be regulated as much as possible at the level of the law itself. In addition, activation of measures by means of AMvB is preferable to ministerial regulations, as this offers better parliamentary control.
Upper House sidelined
An undemocratic aspect of the current bill is that the Senate is sidelined when activating measures. After all, the Senate has no right of veto ("blocking right") in this regard. This undermines the democratic system. Should the Lower House not want to fix this part of the bill, this increases the likelihood that the bill will fail in the Senate.
The proposed section 58f Wpg seems to introduce a mandatory "safe distance" outside the home in advance. Does this also apply without activation through ministerial regulation? If so, this is extremely bad, even if this "safe distance" would be set to zero by default. In Privacy First's view, it is not up to the government to impose distances between people; this is an individual responsibility that most people will observe themselves in appropriate situations. Ditto for possible reintroduction of a duty to wear mouth caps (art. 58g). Privacy First's position has always been that wearing mouth caps should be voluntary, especially as long as the its effectiveness has not been demonstrated.
The main risk of the proposed Corona law is that it will be too easily activated, expanded and abused by future governments, including to combat other diseases and viruses. The same pattern has been visible in recent decades with the introduction and gradual expansion of all kinds of anti-terrorism legislation; it too was often introduced on the spur of the moment and then proved hardly effective, but has structurally changed societies worldwide at the expense of countless classic civil rights. In the wake of the Corona crisis, we should not go down that unholy path again. It is up to the House of Representatives to prevent it.
Of course, we are happy to elaborate on the above aspects.