Privacy First calls on Senate to reject Corona emergency bill

Early this week, the Senate will debate and vote on a bill that has rightly caused a lot of criticism and unrest in Dutch society in recent months. This bill is euphemistically called the Temporary law measures Covid-19 and is better known as the "Emergency Act", "Emergency Act" or "Corona Act".

Since the very first draft version of this law (May 2020), Privacy First has criticised the bill several times. Our main criticism concerned the totalitarian nature of this law: the minister could start restricting numerous fundamental rights by decree and Parliament would be largely sidelined. This aspect of the law now seems to have been "repaired" only as far as the involvement of the Lower House is concerned. Even in the current version of the bill, the minister is still given a wide arsenal of restrictive means at his disposal. In doing so, the Upper House is still largely sidelined. The Lower House would meanwhile have a "ratification right" on measures under the bill, but on closer inspection this turns out to be only a rejection right under high time pressure. We briefly explain this below.

Corona emergency law as menu for numerous curtailments of fundamental rights

Like earlier versions, the current bill still offers every opportunity for the far-reaching curtailment of countless freedoms, fundamental and human rights. No segment of society is spared, for instance freedom of movement in public spaces, public transport, education and childcare, public places, catering, events, sports and recreation, care institutions, etc, all on pain of heavy fines. Witness all the developments in recent months, this now raises the question of whether the negative social, economic and societal consequences of such measures will (start to) far outweigh the supposed positive effects. By analogy with previous rulings of the European Court of Human Rights: to what extent is this a case of "destroying society on the ground of defending it?"

Upper House now sidelined

Privacy First will make no bones about it: once you approve this bill, you will largely exclude yourself as the Senate for the rest of this era. After all, the Corona Emergency Act will be able to remain in force for an unlimited period of time once it comes into force; periodic renewal will be by royal decree and without parliamentary approval. Under this law, countless draconian measures will be able to be taken by the minister (and his unknown successor(s)), with a member of the Upper House having the upper hand. Indeed, for every new ministerial regulation under the Corona Emergency Act, only the Lower House will have the right to reject it within a week, which will prevent the regulation in question from coming into force (or, in the case of emergency regulations, be rendered inoperative). However, the Upper House will not have such a right. An amendment to this effect was tabled in the Lower House, after all, recently rejected. In doing so, the House of Representatives has sidelined the Senate in the Corona crisis, contrary to the systematics that apply, for instance, in emergencies under Article 103 of the Constitution. Regardless of whether an emergency situation already exists (quod non), this should be sufficient reason for the Senate to reject this bill altogether.

House of Representatives sidelined

It has been wrongly suggested recently (by MPs and even by the Council of State) that measures under the Corona Emergency Act can only come into force after the Lower House has given its consent.[*] However, the relevant passage in the current bill (art. 58c paragraph 2-3) reads as follows: "If within [one week] the House of Representatives decision dissent with the regulation, it expires by operation of law." (emphasis added) So this is not a right of ratification, but a right of rejection that requires active decision-making, all under high time pressure. How will this play out during the Christmas recess?

For comparison, see ratification law as it applies to emergency measures under section 176 of the Municipalities Act. It is up to the Senate to have the interpretation and application of Section 58c(2-3) clarified under the current bill. Also, Privacy First advises the Senate to still enforce a stronger ratification right for both the House of Representatives and the Senate and to this end reject the current bill. The preservation of our free democratic constitutional state is best served by this.

[*] See plenary session on the bill in the House of Representatives, 7-8 October 2020. See also the letter from the Vice-President of the Council of State with information on the bill dated 22 October 2020, Parliamentary Papers I, 2020-2021, 35526, no. F, p. 10 (1st paragraph) and p. 12 (1st paragraph).