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MDX lecturer highlights abuses of emergency powers during coronavirus outbreak

15/04/2020
After the COVID-19 outbreak, governments introduced emergency powers to enforce social distancing and stem the spread of the virus

A Middlesex University law expert has been highlighting global use and abuses of emergency powers during the coronavirus outbreak on a major European constitutional website.

Joelle Grogan, a Senior Lecturer in UK Public and EU Law, has been coordinating more than 50 country reports by lawyers and legal experts analysing the use of emergency powers from a democratic, human rights and rule of law perspective.

Since the project launched on April 6, these reports have been featured daily on Vefassungblog, an academic forum of debate on constitutional law and politics in Europe, and have been jointly hosted with the Democratic Reporting International

“Under the guise of responding to the COVID-19 emergency, Hungary's Prime Minister Victor Orbán has effectively consolidated his own power.  This is a violation of the most basic idea of the rule of law: that no man should be above the law.” Joelle Grogan, Senior Lecturer in UK Public and EU Law.

Joelle, who has regularly appeared on CNN and BBC News providing expert analysis on Brexit, is due to publish her own report on the UK’s use of emergency powers this Friday on Verfassungblog.

After the COVID-19 outbreak, governments introduced emergency powers to enforce social distancing and stem the spread of the virus, but Joelle said there must be clarity and transparency over the rules and the ability to challenge the use of powers under the regulations.

Joelle said: “There are some simple questions that we can always ask: Is this action necessary? Is it proportionate eg only doing what is absolutely necessary to achieve a legitimate aim of public health?

“Is there oversight eg from Parliament or a Parliamentary committee? Is there possibility of review eg is it possible for an ordinary citizen to challenge action taken, or decisions made?

In what she described as the “clearest and simplest” way to ensure emergency powers are not misused, Joelle called for a ‘sunset clause’ which would be a date when the emergency powers expire which would allow effective oversight – for example the UK Parliament must approve an extension to the Coronavirus Act 2020 and all regulations introduced by it.

In her report on the UK, Joelle raises concerns over the need for clarity about the emergency powers laws.

She writes: “The primary concern which delayed the introduction of Lockdown and social distancing rules was that the population would quickly become ‘fatigued’ with them.

“However, disproportionate or discriminatory (mis)use of these powers will foster not only fatigue, but frustration.

“Legal certainty and transparency are vital.

“A first, and most important step however to support police forces throughout the country already under enormous pressure to ensure social distancing measures to restrict the spread of COVID-19 is to ensure all know what the law requires – and what it does not.”

So far the project – COVID-19 and States of Emergency - has featured reports from countries such as Brazil, Italy, France and Hungary.

“The most concerning example of the use of powers has so far been in Hungary - though we would easily raise similar concerns about the Phillipines, Bulgaria, Poland, and Brazil, among others,” added Joelle.

“For example, under the guise of responding to the COVID-19 emergency, Hungary's Prime Minister Viktor Orbán has effectively consolidated his own power, through the delegation of legislative power to himself to make, create and amend law - and without limit, oversight or end.

“This is a violation of the most basic idea of the rule of law: that no man should be above the law.”

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