Introduction

The state of emergency represents one of the most significant challenges to modern democratic constitutionalism. When facing an emergency, there is the need for a more effective Government action, which cannot be easily reconciled with all the guarantees and limits that a constitutional order provides for in the physiology of institutional relations. At the same time, however, it is precisely in such a situation that these guarantees become a decisive safeguard of fundamental rights against the threat of a dangerous centralisation of powers. It is no mere coincidence that, without overemphasising this distinction, the ‘state of emergency’ differs from the ‘state of exception’ in so far as it does not provide for any suspension of the constitutional order or the rule of law; the emergency must therefore be managed within the constitutional framework. The issue is not just theoretical but highly topical: in recent years there has been an increasing recourse to emergency regulation, and the Covid-19 pandemic was a decisive test of the systems’ resilience.

Given that the Constitution represents the guarantee limit also (and above all) in a state of emergency, the question is whether it should be limited to this, or whether it should itself regulate the action of public powers in a state of emergency.

The answer to this question is far from obvious and in fact various Constitutions, for several reasons, including historical ones, adopt different approaches. The importance of this issue can be grasped by looking back at recent history. The German Weimar Constitution of 1919, the first Constitution of the modern era, had, among other things, an inherent weakness in its art. 48, which granted the head of Government broad powers to deal with situations of serious threat to public order. As is well known, therefore, the Weimar Constitution not only failed to curb the rise of Nazism, but even provided an opening for Hitler’s rise, precisely through a clause regulating an emergency.^[1]

This paper will attempt to describe the legal framework relating to the regulation of the state of emergency in two different constitutional systems, namely Spain, which has chosen to keep a clause regulating the emergency in the constitutional text, and Italy, which has chosen not to do so.^[2] It will then consider, as tertium comparationis, the case of the United Kingdom, a legal system without a written Constitution and in which the regulation of the emergency is entirely entrusted to primary legislation. Ultimately, this paper will attempt to consider the approach maintained during the Covid-19 emergency by each of these three jurisdictions (of three countries affected by the pandemic in a comparable manner) in order to assess the responses of these systems to the test of its implementation”

The Spanish Constitutional System: Estado de Alarma; Estado de Excepción; Estado de Sitio

The Spanish (rigid) Constitution of 1978 provides for three different exceptional scenarios, regulated by art. 116 and 55: the state of alarm (Estado de Alarma), the state of exception (Estado de Excepción) and the state of siege (Estado de Sitio). While the first can be declared in case of health crises, such as epidemics and serious contaminations, the second is aimed at resolving situations of serious disruption of public order and danger to public safety or for reasons of political nature. Finally, the third state can be triggered if the integrity, unity or security of the State are seriously threatened by a political crisis.^[3] Thus, it is accurate to affirm that these three states do not represent a progressive increase in intensity related to a situation of the same nature, but rather they exhibit qualitative distinctions among them.^[4]

The aforementioned art. 116 provides that these three states and their effects must be regulated by an “organic law” (ley orgánica). A ley orgánica, under art. 81 of the Constitution, is a statutory law which relates to the implementation of fundamental rights and public freedoms,  that approves the Statutes of Autonomy and the general electoral system or concerns other subject matters according to the Constitution. The approval, amendment or derogation of such laws requires an absolute majority of the Congress with a final vote on the draft as a whole. For this reason it was defined as a “reinforced source of law”.^[5] In order to implement art. 116(1), Organic Law no. 4/1981 was enacted.

Another fundamental constitutional provision in this context is art. 55. The latter provides that, in case that a states of siege or exception are declared, fundamental rights such as the right to liberty and security, the secrecy of communications, the inviolability of domicile, the freedom of residence and movement, the freedom of expression, the right of assembly and strike may be suspended according to the Constitution. Arguing a contrario, this means that such a suspension cannot be tolerated in case the state of alarm is declared, but rather that, in the course of it, the aforementioned rights and freedoms can only be limited^[6] and subject to conditions depending on the case, as provided for by the Constitution itself (art. 116(2)) and, more specifically, by Organic Law no. 4/1981 (art. 11).

The relevance of this distinction emerged during the harshest period of the Covid-19 pandemic. Indeed, on 14 March 2020 Royal Decree no. 463/2020 was issued, declaring the state of alarm for the management of the pandemic, as the already-mentioned ley orgánica prescribes at art. 4. As it happened almost in all over the western world, this Decree strongly limited the freedom of movement as well as other fundamental rights.

However, from the beginning, legal scholars started to discuss whether such measures constituted a mere restriction of fundamental rights or rather a complete suspension. It’s worth noticing that the distinction is not merely cosmetic or terminological: only the state of exception allows for the suspension of certain fundamental rights, as stated above.

Certain legal scholars argued that “no one can consider that quarantining – either in a medical centre or at home – a passenger on a flight or ship suffering from a highly contagious disease (...) means suspending fundamental rights”.^[7]

Others, on the contrary, argued that such measures were not justified under a state of alarm, since they represented a complete suspension of fundamental rights,^[8] permissible only under the state of exception.

This issue has been also analysed by the case law. Indeed, on 14 July 2021, the Spanish Constitutional Court (SCC) issued a ruling on the constitutionality of several provisions (namely articles 7, 9, 10 and 11) of the aforementioned Decree of 14 March 2020, along with subsequent amendments and extensions.

The Court focused on the differences between state of alarm and state of exception, and on the relevant distinction between suspension and limitation of fundamental rights. In this regard, it was argued that limitation is the species while suspension is the genus; this means that limitation is a “qualified suspension”. To be precise a suspension means “a cessation, even if temporary, of the exercise of the fundamental rights and its safeguards”.^[9]

With regard to the freedom of movement, the Court found out that the state of alarm turned this right into an exception: such restrictions surpassed what the ley orgánica allows the Government to do under a state of alarm. In other terms, the Government surpassed the limits because it suspended a right which could have only been restricted. Therefore, art. 11 of Law no. 4/1981 was unconstitutional.

The judgement at stake is relevant for other reasons too. Indeed, among other things, the Court concluded that “would have made it possible to justify the declaration of a state of exception on the basis of the circumstances that actually existed (...) thus legitimising even the adoption of measures that imply a radical or extreme limitation (suspension) of the rights considered herein”.^[10]

Essentially, the SCC meant that the measures such as the ones contained in Royal Decree of 14 March 2020 were not unconstitutional per se. On the opposite, it said that the Government had erred in declaring a state – the state of alarm – which didn’t allow a suspension of fundamental rights, rather than the state of exception, which could allow it. In other terms, the Court told the Government what it should have done – something that seems to go against the principle of separation of powers.

To conclude, it’s worth noticing that Spain has a system which is extremely forward-looking, since its Constitution explicitly provides for hypothesis of limitation and suspension of fundamental rights. Whether this is a good strategy for facing emergencies, or rather an inherent weakness of the system, will be discussed below.

The Italian Constitutional System Challenged by the Pandemic

The Italian constitutional system, unlike the Spanish one, doesn’t have an emergency clause within the Constitution, except for the “state of war” pursuant to art. 78, according to which, upon authorisation of the two chambers and the formal declaration of the President of the Republic, “necessary powers” can be conferred to the Government.

This was a conscious choice made by the Constituent Assembly: indeed, the inclusion of an emergency clause was proposed within the process of drafting of the Constitution. However, in the end, those who thought that it would have been dangerous to provide for a state of emergency under which it would have been possible to limit or suspend fundamental rights, prevailed.^[11] In particular, it was argued that suspending the rights of liberty would be tantamount to suspending the very idea of democracy.^[12]

Even if the Constitution does not regulate the emergency, this does not mean that Italian primary law does not do it. In fact, the first regulation of the emergency is Law no. 225/1992, which created the National Service of Civil Protection, subsequently amended by Legislative Decree no. 1/2018 (the so-called Civil Protection Code).

Art. 24 of the aforementioned Decree provides that the Council of Ministers may decide on a state of emergency of national importance upon the occurrence of certain events provided for in art.7, which legitimise the power of civil protection ordinance under art. 25, which may take place “in derogation of any provision in force”. Severe requirements must be met in order to issue such a declaration: first of all, pursuant to art. 7, calamitous events of natural or man-made origin must have occurred. Secondly, the state of emergency cannot last more than 12 months, to be extended once.

It’s worth noticing that this was the instrument used during the pandemic. Indeed, on the 31 January 2020, the state of emergency was declared through a decree of the Prime Minister.^[13] The factual assumption for such a measure, required by the law, was the World Health Organisation declaration of “global sanitary emergency”, issued on the 30 of January 2020.

Once a state of emergency is declared, it is possible to enact limitations on rights within the essential limit of the preservation of the rule of law.

At any rate, it is important to emphasise that also in Italy, as it happened in Spain, the Constitutional Court has intervened^[14] to assess whether the Government’s management of the pandemic was unconstitutional. In particular, the mechanism by which fundamental freedoms were restricted came under scrutiny. The applicant claimed that Law Decree no. 6/2020, subsequently abrogated by Law Decree no. 19/2020 – both issued under the aforementioned Civil Protection Code – had altered the hierarchy of legal sources. In particular, the core of the constitutional challenge was that the primary legislation under review (Law Decrees) would have “delegated” the sub-primary sources (Prime Ministerial Decree) to define new administrative offences. As a result – as stated in the order of referral – “the cardinal principle laid down in articles 76 and 77 of the Italian Constitution, according to which the legislative function is entrusted to Parliament, which may delegate it only by means of a delegated law and never to administrative acts, would have been circumvented”. The Court ruled that the constitutional appeal was unfounded. First of all, the aforementioned administrative measures were adopted on the basis of the Law Decree no. 19/2020, which in turn had been adopted pursuant to the Civil Code Protection: in other words, the principles of specificity and legality had been respected. Secondly, the Law Decree no. 19/2020 provided for specific precautions. Indeed, it listed the measures that could be adopted to contain and counter the health risks arising from the spread of Covid-19, according to the principles of adequacy and proportionality. Moreover, this was accompanied by: the temporariness of the restrictive measures; the report every fifteen days to the Chambers on the measures adopted; the prior illustration to the Parliament (except for reasons of urgency) of the content of the measures to be adopted and the opinion of the Technical and Scientific Committee.

A second important decision of the Constitutional Court was issued in 2022.^[15] In particular, once it was clarified that the model of management of the pandemic had been constitutional, the Court was requested to assess whether the quarantine imposed on those who tested positive for Covid-19 was unconstitutional. The Court found out that such a measure was not a restriction of personal freedom under art. 13 of the Constitution but rather a restriction of the freedom of movement for health reasons, under art. 16. The latter provides that “Every citizen has the right to reside and travel freely in any part of the country, except for such general limitations as may be established by law for reasons of health or security (...)”.

Therefore, under the Italian Constitution, freedom of movement can be restricted by the law for health reasons, and administrative acts can intervene in specifying the measure issued by the law, as it happened through the Decree of the Prime Minister. In other words, art. 16 provides for what under Italian constitutional law is called riserva di legge relativa: the possibility for secondary law to specify the general limitation established by primary law.

In light of what has just been said, the measure was deemed to be in conformity with the constitution.

In conclusion, Italy does not have a constitutional system which provides for specific states of emergencies. However, this did not prevent the issuing of “emergencies” measures which were judged to be constitutional.

Once again, whether this system worked better than others, it will be a matter to be discussed below.

Tertium Comparationis: the United Kingdom

As is common knowledge, the British legal system is distinguished by the lack of a rigid, written Constitution:^[16] the English Constitution is based on a plurality of heterogeneous and equal^[17] sources. In fact it is, above all, the result of the sedimentation over the centuries of constitutional customs that mainly concern the relationship between institutional bodies and particularly between the Parliament and the Government, around two cornerstones: the rule of law and the sovereignty of Parliament.

It follows that unlike Spain and, with some variations, Italy, there is no constitutional framework in the English legal system that governs the exercise of powers in a situation of emergency.^[18] However, at the primary legislative level, the English legal system provides for the Civil Contingencies Act of 2004 which, unlike the previous legislation,^[19] does not require the proclamation of a state of emergency. The Civil Contingencies Act grants the Government the possibility of issuing emergency regulations, but at the same time sets limits of substantial nature (such as the inviolability of the Human Rights Act of 1998) and of procedural nature, preserving important mechanisms of parliamentary control.

Hence, the recent Covid-19 crisis was addressed by the Government by applying an emergency regulatory framework^[20] consisting mainly of the Public Health Act of 1984, the Contingencies Fund Act and the Coronavirus Act, which were specially enacted in 2020. Significantly, however, the Johnson Government decided not to activate the Civil Contingencies Act.

Moving on to the Coronavirus Act, this granted the British Government extensive delegated powers^[21] to deal with the pandemic. The manner in which this measure was enacted was peculiar. In fact, the Coronavirus Act completed its legislative process in a single day in each chamber (so-called fast track legislation), and it was given the royal assent two days later,^[22] when the work of Parliament was severely hampered by pandemic security measures.^[23]

Without discussing the individual measures to deal with the pandemic, it is worth mentioning that the Coronavirus Act grants the Government a great deal of autonomy. It will suffice to recall that the mentioned Act provides the Government with the Henry VIII powers, i.e. the power to amend or repeal primary legislative provisions, through acts of secondary legislation, with very limited, if any, parliamentary scrutiny. Another important useful feature for understanding the scope of the Act is the so-called “sunset clause”, i.e. a time limit after which the Government’s extraordinary powers lose their effectiveness: the Coronavirus Act provides for a sunset clause of 2 years, providing for possible extensions.

That of adopting a new legislative text is, to say the least, a questionable choice: if, in fact, the Civil Contingencies Act was perfectly suited to managing even a pandemic emergency,^[24] its non-implementation avoided (or probably, was precisely intended to avoid) the significant guarantees placed at its foundation, particularly in terms of parliamentary control. To give an example, the Civil Contingencies Act required the Government to submit the adopted regulations to the Parliament as soon as possible, since they would have expired after seven days, unless each House passed a resolution on their approval. Instead, the most significant parliamentary control measure of the Coronavirus Act is the approval every six months of a motion that fully extends the effectiveness of the measure, without the possibility of amending it (a revision mechanism that is due to a question raised only at the time of the act’s adoption by the Conservative MP Davis).^[25]

In any case, the restrictions on personal liberty due to lockdowns during the various phases of the pandemic emergency found their source in the Public Health Act and not in the Coronavirus Act nor in the Civil Contingencies Act. The Public Health Act was adopted in 1984 and allows the Government to adopt measures restricting the freedom of movement of citizens, without the penetrating mechanisms of parliamentary control provided by the Civil Contingencies Act,^[26] where the main substantive limitation is in fact the “proportionality” of the measure.^[27] For the purpose of this paper, it is also worth mentioning that the Public Health Act does not require the declaration of a state of emergency or an equivalent state as an indispensable precondition for the exercise of emergency powers, despite the fact that at the same time it provides for an emergency procedure, problematic from the point of view of parliamentary scrutiny,^[28] which was used in the first months of the pandemic.^[29]

In conclusion, despite the existence of suitable legislation to manage the emergency, it was decided, once the crisis was in progress, to regulate ex novo the dynamics of powers in the emergency phase. This was possible in the absence of any constitutional provision, of whatever form, binding the Government powers. This happened when the Parliament was deprived of its functions, and when it was already extremely difficult to formulate effective measures to counter the health and socio-economic consequences of the pandemic. It is not surprising, then, that the regulatory framework resulting from the pandemic experience has seen a significant marginalisation of the Parliament and only a few months after the 2019 Miller vs The Prime Minister ruling that had strongly defended the principle of parliamentary sovereignty in the English legislative and constitutional dynamic.

Critical Reflections

Having described the essential features of the legislation in Italy, Spain and the United Kingdom, even in the practical application of the response to the pandemic crisis, it is natural to discuss which model has reacted better.

A premise is therefore necessary: there is no intention to judge the effectiveness of individual pandemic response measures. Those described are three different constitutional approaches, which in abstract terms have equal validity. The intention instead is to observe how the pandemic crisis has provided an opportunity to test their adequacy.

One parameter that can certainly be useful is the resistance of legislation before the scrutiny of the courts, particularly the constitutional ones. Some thought will be given to this, but it is important not to overestimate this criterion for at least two reasons. First of all, it must be remembered that it is indeed difficult to make a comparison, since the legal systems taken into consideration have different systems of constitutional justice. Furthermore it is reasonable to think that in constancy of emergency a court might maintain an attitude of certain deference to the choices of the Government. If this were not the case, the annulment of a law, for instance, would lead to an unacceptable regulatory vacuum during a crisis. This suffices to cast a doubt on the reliability of this parameter.

Taking the English model as a starting point, it is distinguished by the absence of any constitutional framework for the regulation of powers during an emergency, which, therefore, is entrusted to primary legislation, and in fact an emergency regulation law was well in place.

It was therefore to be expected that the British Government would have adopted the framework already existing. But this was not the case: the English Government, as mentioned above, decided to enact a new law for emergency powers after the outbreak of the pandemic.

This is subject to some criticisms. It is preferable, in fact, to regulate the emergency before the emergency itself recurs, with a clear head, when the Parliament, in the fullness of its functions, is able to design a regulatory framework that, while giving more autonomy to the Government, does not renounce the fundamental guarantees of the democratic system. Indeed, it is precisely when citizens’ freedoms and rights are at stake that it is necessary for the representative body to ensure that the Government’s measures are inspired by the criterion of proportionality.

On the contrary, regulating the emergency during the emergency itself means allowing the Government to take advantage of its position of increased (and desirable) autonomy from the Parliament in order to introduce a system that excessively mortifies the prerogatives of the representative body and the principle of the Government’s accountability to the Parliament.

This is what has happened in the United Kingdom: in a system that makes the supremacy of Parliament one of its strengths, the pandemic, as an exceptional event, has, therefore, strongly affected the entire British constitutional system and the relations between institutions.

Considering instead an almost diametrically opposite system, like the Spanish one, it was noted that it tries to foresee emergencies events through three different scenarios. However, this represents – according to the authors – an intrinsic weakness of the system. Indeed, it seems a contradiction to draft a rigid Constitution which recognises fundamental freedoms, while including within the same text cases in which the same rights and liberties not only can be restricted, but even suspended, as it happens for the state of exception. That is why the view of the Italian Constituent Assembly is shareable: suspending the rights of liberty in times of emergency would be equivalent to suspending the fundamental principles of democracy itself.^[30] In this sense, the aforementioned Constitution of Weimar is a tragic precedent, without clearly trivialising the important differences from current constitutional systems (above all, the absence of a Constitutional Court).

Moreover, it is reasonable to say that the Spanish system did not work better than the Italian one. In fact, as we have seen, the intervention of the Constitutional Court clarified that the Government had erred in declaring a state instead of another. This means that the willingness to foresee future emergencies created an uncertain and over formalistic system, in which the scope of application of the states is not clear.

In conclusion, Spain, despite having experienced, just like Italy, the brutality of a dictatorship, erred – according to the authors – in trying to foresee the emergency at any cost: this resulted in a confusing system in which not even the Government is capable of choosing the right thing to do.

Paradoxically, a system such as the Italian one, which doesn’t have a Constitution providing for states of emergency, worked better in the sense that, as we have seen, the Constitutional Court clarified the conformity with the Constitution of both the system of management of the pandemic and of the more restrictive measure such as the quarantine.

Of course, affirming that the Italian constitutional system has emerged totally unscathed from the pandemic is quite naive and optimistic. Just to mention some of the problems which characterised this delicate period of recent history, many authors denounced a clear marginalization of Parliament, even though the latter was formally involved in many key decisions. Moreover, there has been, especially in the first period of the pandemic (2020), an abuse in the enactment of DPCM, administrative measures which despite being legitimate, from the point of view of the hierarchy of legal sources, cannot be scrutinised in their content by the Constitutional Court, since they are not legislative sources, but only by Administrative Tribunals.

All things considered, the Italian constitutional system seems to have reacted better to the test of the health emergency. This is due, at least in large part, to the role that the Constitution was intended to perform. The Italian Constitution did not play, nor did it intend to play, an active role, predetermining how emergency powers should be exercised. An overly detailed and too advance regulation in the constitutional text, in fact, in addition to being unhelpful, carries the risk – since it is precisely a rigid norm – of constituting a limitation to adequate emergency management. The absence of a constitutional regulation of emergency powers during emergencies in Italy, in fact, has not prevented the adoption of the necessary measures to deal effectively with the consequences of the pandemic.

On one hand, the role that the Italian Constitution intended to play is that of a negative, guardian role, interpreting that minimum threshold of fundamental rights and freedoms, as well as guarantees of the democratic system, below which any regulatory provision, even of an emergency nature, cannot go. On the other hand, such role is necessary since, without it, an emergency could bring down the safeguards of a constitutional democratic state.