Second GPN Global Webinar "COVID-19. SUPERNATIONAL, NATIONAL AND REGIONAL RESPONSES. BUILDING RESILIENCE THROUGH COMPARISON OF EXPERIENCES" - March 5th 2021 Professor Susana de la Sierra "Spain's response" GPN: https://www.globalpandemicnetwork.org/ Official GPN webinar web page:https://www.globalpandemicnetwork.org/news_events/webinar-5th-march-2021/

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Global Webinar
Covid-19 and Government response.
Building resilience on comparison of experiences
SPAIN’S RESPONSE
Susana de la Sierra
Associate Professor of Administrative law
University Castilla-La Mancha
5 March 2021

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SPAIN: OLD NORMS, NEW CHALLENGES AND INSTITUTIONAL DESIGN
• The role of law and the role of science
• The state of alarm as the legal instrument that has been used
• The role of the three powers
• Institutional design → what authorities?
• Some debates

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THE ROLE OF LAW AND THE ROLE OF SCIENCE
-First reaction in Spain was tardive in comparison to other
countries
-Reasons for this still to be assessed: lack of information,
misunderstanding of information, different scientific approaches
-The role (and the need?) of external audits: a tool to help in future
challenges
-Mixture of legal and scientific debates all along the pandemic: the
role of each in (political) decision-making processes
-After some days of contradictory signals and intense
political discussion, the central Government declared the
so-called «state of alarm» (estado de alarma) through
Royal Decree 463/2020, March 14 [COVID-19 online Code]

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WHAT IS THE STATE OF ALARM?
- The legal instrument used to keep the population under
lockdown
- In the public opinion it has been identified with the measures
themselves (state of alarm = lockdown)
- Certain rights and freedoms were to be limited
or suspended
→ Was this allowed by the Constitution?
→ Was this necessary? Other legal options

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- Article 116 of the Spanish Constitution (December 27, 1978)
regulates emergency powers in Spain
- Types
- State of alarm
- State of exception
- State of siege
- Organic Statute 4/1981, June 1, on the states of alarm, exception and
siege

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- Main differences
- Impact on fundamental rights
- Authority to declare it (executive vs. the legislative)
- State of alarm is the least severe instrument of the three
- Discussion on the legal instrument used
- Lack of experience
- December 4, 2010: air controllers on strike (state of alarm)
- Outdated legislation
- The political context has also changed since 1978

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- The state of alarm can be declared by the executive in case of a
particular list of situations that may cause serious affection on
ordinary life
- Sanitary crises, such as epidemics (...)
- It may refer to the whole territory of the State or to a particular area
- Presidents of the Autonomous Communities can ask the central Government to
declare the state of alarm
- The Government shall inform the Lower Chamber (Congreso de los Diputados)

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- The Decree adopted by the Government has Statute-like
value (judgement of the Spanish Constitutional Court
83/2016, April 28)
- Duration: 15 days
- After this period, the Lower Chamber may extend its effects
- From March until June extensions of 15 days

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- Delegated authority: Health Minister
- Increase of competences
- Homogeneous regime independently of the particular
situation of regions or municipalities
- Disproportionate
- Source of political battle
- Strict lockdown with few exceptions
- More severe than in other countries

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- Summer time was «de-escalation» time
- Measures were softened
- New political tension
- Some Autonomous Communities had complained and reclaimed a
stronger role for regions
- «De-escalation» was conducted by Autonomous Communities
- At this moment, there was a political and legal turn: heterogeneity
and a descentralised model based on co-governance

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- In September the situation changed pattern as expected
- New state of alarm yet with different features
- Royal Decree 900/2020, October 9
- Royal Decree 926/2020, October 25
- Six-month extension until May 9, 2021
- Delegated authorities: Presidents of Autonomous Communities
- The state of alarm is now a legal framework enabling action (e.g.
limitation of the freedom of movement, lockdown)
- Full responsability for regions
- Over-reaction?
- Concerns about lack of coordination

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THE ROLE OF THE THREE POWERS
- Strong position of the executive/the central Government
- Other legal instruments were possible: public health regulations
- Organic Statute 3/1986, April 14, Special Measures on Public Health
- Statute 33/2011, October 4, on Public Health
- Discussion (mainly between administrative and constitutional legal scholars)
- Do these measures imply a limitation or a suspension of rights (such as
freedom of movement)?
- Are there rights that cannot be affected, such as the right to vote?

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- The review of Royal Decree 463/2020 by the Constitutional Court is
still pending
- Countless decisions by administrative courts (new competences)
- Interim measures
- Review of secondary legislation/regulations
- Review of administrative acts
- On-going public discussion on judicial activism → old norms require active
interpretation
- Acts adopted by Presidents of Autonomous Communities as
delegated authorities are challenged before the Supreme Court

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INSTITUTIONAL DESIGN → WHAT AUTHORITIES?
- Preeminence of the executive
- Parliament has been fairly passive
- Courts are co-drafting the legal framework
- Descentralisation has led to more competition → good and bad
examples have come out
- Weekness of public health administration
- Lack of transparency
- Spanish Council of Transparency and Good Governance could do better

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SOME DEBATES
• The role of courts
• The inactivity of the Parliament
• The role of the executive (discussion is more political than legal)
• Apps to detect COVID-19 and data protection
• Elections (Galicia, Basque Country, Catalonia)
• Vaccines: vaccination programm, vaccines by public officials, data protection,
shall it be compulsory?
• Compliance: sanctions
• Transparency

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Thank you!
Susana.Sierra@uclm.es
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Covid-19 and Government response.
Building resilience on comparison of experiences