Lack of coronavirus law makes Dutch gov't more vulnerable to lawsuits

If the new Public Health Act (Wpg) is not implemented before measures are needed to quickly halt a significant revival of the coronavirus, the government will need to resort to emergency regulations, the Advisory Department of the Council of State warned. And the business community or action groups may challenge such emergency regulations in court.

Summary proceedings can demand the reversal of an emergency measure because it has no specific basis in the constitution, State Councilor Ben Vermeulen explained in a parliamentary consultation on the bill to amend the Wpg. A definitive “coronavirus law” is part of the amendment. If the court rules that the emergency measure is contrary to the constitution, the Cabinet’s only option is to invoke the unwritten emergency law. “That makes us very anxious,” said Vermeulen. “That is extremely vague. We only used it in the Second World War.” And during the last flood disaster in Limburg, he added.

Although Vermeulen could not estimate how many lawsuits would follow mayors implementing emergency ordinances, he does not rule out an increase. At the start of the coronavirus pandemic, there were 20 to 30 lawsuits, as far as Vermeulen knows. He also can’t say how a court will rule.

So the Council of State is in favor of the Wpg, precisely “because of the vulnerability at the moment that you do not have a law for emergency measures,” Vermeulen said. Despite points of criticism. “A legal framework is important.” The bill lists measures the Cabinet can implement if necessary. The Council of State called it a ”toolbox.” It believes this toolbox can be filled better, including with options for setting a curfew and implementing the coronavirus access pass. The Cabinet left these measures out.

Since the Senate rejected the fifth extension of the temporary coronavirus law in mid-May, the Cabinet no longer has a legal basis for implementing and enforcing measures against the spread of the virus. To close this legal gap, Public Health Minister Ernst Kuipers submitted an amendment to the Wpg to parliament. The government can only make measures mandatory if parliament and the Senate approve.