Spanish Prime Minister Pedro Sánchez made it clear on Tuesday that his government is not expecting to have to extend the current state of alarm beyond May 9, when it is set to expire. The emergency situation was voted through in the lower house of parliament, the Congress of Deputies, back in October. The aim was to allow the country’s regional governments to introduce coronavirus restrictions – including nighttime curfews – without facing legal challenges in the courts. From May 9, the regions will once again be in charge of the measures they implement, as was the case between mid-June and October of last year, but will not have all of the powers that they currently enjoy under the state of alarm.
When the first state of alarm expired in June of last year, the attempt to pass the control of coronavirus restrictions to the regional governments led to a series of court cases, resulting in a number of sometimes contradictory rulings. Legal experts fear that this situation could repeat itself from May, given that any limits on fundamental rights established by the regions require legal backing.
With the backing of the courts, the regions can restrict the maximum number of people at social meetings, both inside and outside
The regional governments can use a 1986 public health law as the basis for coronavirus restrictions, as it permits them to adopt “the measures that they consider necessary” in order to control transmissible diseases. Many legal experts have warned in recent months of the need to reform this law in order to specify exactly which measures the regions can implement without having to receive the approval of the courts, and thus avoid the legal chaos that ensued last summer. The central government, however, did not consider such a reform to be necessary, and the regional administrations are likely now to have to find formulas to combat the spread of the virus depending on the situation. Judges will have the last word as to whether they get legal backing.
The current state of alarm regulates three main measures that limit fundamental rights: nighttime curfews, perimetral lockdowns and social meetings. According to the government and most of the experts consulted for this article, the only one of these that will be left without legal backing once the state of alarm expires is the curfew. If a region wanted to keep it in force, they could use the aforementioned 1986 public health law and then wait for the response of the judges.
There are fewer doubts around the powers of the regional governments to restrict the entrance to and exit from their territories as well as limits on groups of people in the street or enclosed spaces. The administrations have the power to close the perimeter of their regions as well as to lock down provinces, municipalities and even neighborhoods, as happened last summer. With the backing of the courts, they can also restrict the maximum number of people at social meetings, both inside and outside.
Other measures that the regional governments have been using, such as closing down the interior of bars and restaurants or the suspension of non-essential activity, do not restrict fundamental rights, meaning that they don’t need the coverage of the state of alarm nor legal authorization. The same applies to the closure of public spaces such as parks, and limits on opening hours for stores and the hospitality sector. The regions can implement these measures without the blessing of judges, although of course any ruling can be appealed in the courts.
For now, the central government – a coalition of the Socialist Party (PSOE) and junior partner Unidas Podemos – is yet to announce whether it will pass any legislation that will set out common measures for the entire country, as it did last summer when the end of the state of alarm was accompanied by a decree passed in Congress that established certain general aspects, such as the mandatory use of masks in public and 1.5-meter social distancing.
Also yet to be established is the role that the Inter-Territorial Council of the National Health System (CISNS) will have after May 9. The government insists that decisions made by this body, which brings together the central Health Ministry and the regional healthcare systems, must be observed by regional governments. The CISNS, for example, imposed the perimetral lockdowns over Christmas and Easter week, as well as circumventing the opposition to coronavirus restrictions voiced by some regional governments, in particular Madrid. Once the state of alarm has been lifted, this body could also give legal coverage to measures that are in danger of exceeding regional powers.
English version by Simon Hunter.