Spain plans to change laws if Supreme Court vetoes the regions’ measures to combat the coronavirus

The Spanish government believes that the worst of the coronavirus pandemic is now over, and that there is no need to extend the state of alarm. The emergency situation, which had been in place for six months and gave the regions the legal backing they needed to limit fundamental rights such as movement, officially came to an end at 12am Sunday morning. Regional chiefs, however, many of whom are from different political stripes than the Socialist Party (PSOE) and Unidas Podemos coalition government, have complained that they have been left high and dry in this new situation and do not have the necessary tools to control the epidemic.

Writing in EL PAÍS on Monday, Spain’s justice minister, Juan Carlos Campo, argues that the ongoing vaccination campaign and the current situation of the pandemic in Spain has made it possible to end the state of alarm, something that he considers to be good news. After suffering three waves of the epidemic, leaving behind an official death toll of more than 78,000 victims, Spain is still registering an average of 600 Covid-19 deaths a week.

The intensive care units (ICUs) of regions such as Madrid, Catalonia and the Basque Country, meanwhile, remain under high pressure while the cumulative incidence in these territories remains either at extreme risk or very close to that level.

The vaccination drive picked up speed in April, and the most vulnerable population – i.e. the over-60s, who account for 95% of mortality – will be fully vaccinated or will at least have received one dose of a Covid-19 inoculation – by the end of May. When this situation is reached, the experts argue, the pressure on hospitals will fall.

The government understands that the legal framework is sufficient to combat the pandemic given the phase in which we find ourselves

Spain’s justice minister, Juan Carlos Campo

Despite the concerning figures, the central government believes that the existing legal measures available to the regions – which are in charge of their vaccination drives, their healthcare systems and the coronavirus measures they deem necessary – are sufficient to deal with the situation. The government has pointed out that the regions can call on the central government to approve emergency situations just for their territories, and has also committed to making the necessary legal changes should the Supreme Court veto nighttime curfews or lockdowns implemented by a region.

“The government understands that the legal framework is sufficient to combat the pandemic given the phase in which we find ourselves,” argues the minister in his article. “It is a flexible framework with guarantees, and allows the health authorities to adapt decisions and necessary measures to each regional situation. And it must be the judges who decide on proportionality if strict measures restricting rights have to be taken,” he adds.

The early results of this new situation – one that Spain has already seen, when the first state of alarm expired last summer – suggest that there will be legal problems ahead. The High Court in the Basque Country, for example, has already vetoed the restrictions that the regional premier, Iñigo Urkullo, wanted to implement – and that is despite the fact that the northern territory has one of the worst incidence levels of the virus in the country. The courts in the Balearic Islands and Valencia, meanwhile, have backed similar restrictions.

On Sunday, the High Court in the Canary Islands also rejected “limiting the entry and exit of citizens,” as well as refusing to authorize a nighttime curfew.

The decision of the court in the Canary Islands was made by five judges, with three in favor and two against. This reflects the huge differences of criteria that exist among the judiciary across the country when it comes to ruling on restrictions affecting fundamental rights without the backing of a state of alarm.

Last week, the government approved a decree allowing the Supreme Court to reach a consensus on these cases in a shorter time frame than usual. For this to happen, public prosecutors or regional governments will have to appeal rulings from their territorial courts. The justice minister has announced that if the top court’s rulings show that there is a “need to make additional legal changes, these will be studied and proposed in parliament.”

Campo also points out that “regional governments always have the possibility of requesting [from the central government] a state of alarm for their territories, with the scope that they deem necessary.”

The state of alarm ended in Spain at 12am on Sunday morning. Despite restrictions remaining in place, the lapse of the emergency situation saw thousands of Spaniards take to the streets that night, to celebrate and party. The end of the restrictions also meant that in parts of Spain nighttime venues with music licenses could reopen, albeit with dance floors remaining closed for now.

Opposition backing

Since the coronavirus pandemic arrived in Spain, opposition parties have flip-flopped over their support for the state of alarm. At the outset of the health crisis, the central government – which lacks a working majority in the Congress of Deputies, and thus must seek support of other groups to pass legislation – found widespread backing for the emergency measure. However, as the crisis progressed, this support has come and gone.

The main opposition Popular Party (PP), for example, has voted in favor, against and abstained when an extension to the state of alarm has been proposed in Congress. “They like to govern with constitutional exceptionalism,” said PP leader Pablo Casado of the coalition government by way of justifying his party’s abstention so as not to “give backing to the legal violation” of the government of Prime Minister Pedro Sánchez, according to comments he made last year and that were reported yesterday by the Cadena SER radio network. Now, however, Casado has accused Sánchez of “disappearing” and “leaving the regional governments alone with 100 Covid-19 deaths a day and legal chaos.”

Speaking on Sunday, after Madrid was host to scenes of late-night revelling and parties, the city’s PP mayor, José Luis Martínez-Almeida denounced the situation. “The fact that right now, after the end of the state of alarm, there is no legal Plan B, a legal framework, weakens all of the administrations,” he said, in comments reported by the Atlas News agency. The deputy mayor, meanwhile, Begoña Villacís of center-right Ciudadanos (Citizens), said that the situation was “the reflection of an even more insensitive attitude, that of the prime minister of the government, who has decided to end the state of alarm and leave us in a vacuum. What does the situation that we have now mean?”

Despite the complaints from politicians, for now no regional government has requested that a state of alarm be implemented in its territory.

English version by Simon Hunter.