Liekuut | Drastically revise the disaster and emergency law before the next crisis

In ‘Liekuut’, which is the Groningen dialect for straight ahead or straightforward, we share the perspective of one of our academics on a topical issue every month. This is how we show that UG researchers contribute to the societal debate.

When the final coronavirus measures were lifted in early 2022, a sigh of relief rippled through the country.  After two years of dealing with a legal patchwork of distancing rules, emergency decrees, curfews, and other prohibitions, we were finally able to move on with our lives. What have we learned from the way we fought this crisis though? Not a lot so far, it seems, says Adriaan J. Wierenga, emergency law specialist and researcher at the UG. According to him, the current proposals to revise the legislation to combat national crises – the national emergency law – are unnecessarily complex and insufficient for the future. He argues in favour of a thorough revision and simplification of the national emergency law before the next crisis arrives. Proper legislation could save lives.

Amateurish legal construction

‘When the coronavirus started spreading in all seriousness, it soon became clear that the emergency law for infectious disease control was not going to suffice to overcome this health crisis. This law set out how to deal with the infected and potentially infected: quarantine and isolation. With this outbreak, however, it turned out that the healthy part of the population had to be protected. In great haste, municipal emergency law was seized upon to close down shops and the hospitality industry, lay down distancing measures, and forbid gatherings. However, the municipal emergency law, dating from 1851, is actually meant for local and short-term disasters and public order offences. This time, it was implemented for almost nine months on a national scale until the temporary coronavirus law was approved, which provided all measures with the required national legal basis. Not long after, the country was placed under curfew as well – a measure thought up during war times and a profound limitation of people’s freedom of movement. This was done using another legal principle from the national emergency law. All in all, it was a patchwork of amateurish legal constructions in order to overcome this crisis.’

Avoid unnecessary complexity

 ‘At the moment, the people in The Hague are working on amendments to the national emergency law, but, in my opinion, these are not drastic enough and unnecessarily complex. The infectious disease control legislation has already been amended, but only for the purpose of controlling diseases similar to the coronavirus. It’s impossible to precisely predict or foresee future crises or disasters, let alone create specific legislation for them. A simple example of this is that, following the coronavirus crisis, they are analysing how many intensive care beds should be available. But what if we are faced with a different type of pandemic, one where we require kidney dialysis equipment, for example? And what should we do in a large-scale digital attack, or long-term interruptions of our electricity supply? Crises, their course, and the necessary measures are often unpredictable, rendering highly specific legislation useless.

Municipal emergency law as example

 Wierenga believes it would be a good idea to look closely at the municipal emergency law, when revising the national emergency law for national disasters: ‘The fact that the legislator fell back on an old, yet very effective, local law already indicates that this should be our source of inspiration when revising the national emergency law. In the municipal emergency law, the powers are clear, as are the checks on these powers that are in place. It concerns a very flexible power, in which no differentiation is made between the different types of crises or disasters that could affect a municipality or region. In the event of serious disturbances or disasters, the mayor is able to take any and all measures necessary to maintain public order or to limit the danger.

Make the core of the national emergency law into an open and flexible power as well. Clearly set out who has that power; the Minister of Justice and Security, for example. Supervision would then be placed with the Parliament, both with the Senate and the House of Representatives. This makes it possible to switch swiftly, and it is clear to the population what is expected of them. This could be life-saving in certain calamities or disasters, including the unforeseen ones.

 A parliamentary inquiry must be held

 ‘It’s important that the intended parliamentary inquiry into the coronavirus crisis is held. The inquiry should specifically look at what we can learn from this crisis for the future. As far as I’m concerned, the first lesson that can be drawn is that we need future-proof and sufficient national emergency legislation. When it comes to it, you will have a strong legal toolkit to draw from in predictable or unpredictable future national or international crises. I believe that now, during peacetime, is the right time for a thorough revision to ensure that the government is ready to overcome a next crisis.’

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