Venice Commission - Observatory on emergency situations
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Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The declaration of the state of natural disaster by the Council of Ministers for a period of not more than 30 days does not require approval by the Albanian Parliament. Therefore the declaration of the state of natural disaster was not subject to approval in Parliament. Only the extension of this situation until 23.06.2020 was approved by the Parliament.
The decision was taken by the Government. According to Article 120 part 2 of the Constitution in case of declaration of a state of emergency, a special sitting of the National Assembly shall be immediately convened by virtue of law. The National Assembly may lift the state of emergency or cancel the implementation of measures provided for under the legal regime of state of emergency, by majority of votes of the total number of Deputies (part 3).
Not applicable - a state of emergency was not declared in Austria, and the Constitution does not provide for such a declaration (see Q1 about the extraordinary powers of the Government in cases where Parliament cannot meet), and the Government was acting on the basis of pre-exiting legislation, or legislation amended during the COVID crisis
Not applicable, since no declaration of emergency on account of the pandemic
Only in the Republika Srpska did the legislative body pass the decision on declaring a state of emergency, while in the case of the Federation of BiH and the Brčko District, the executive body passed a similar decision. These decisions were not subject to the approval of the competent legislatures.
The declaration of a state of emergency, as regulated by the Constitutuon, is an exclusive competence of the National Assembly. The procedure for declaring an emergency epidemic situation by the executive is regulated in Art. 63 of the Health Act (as amended in 2020) and does not require coordination of the act of the Council of Ministers with the Legislature.
Νο - there was not formal declaration under the Constitution, but the powers given to the executive by the 1932 Quarantine law have been used.While according to the Cypriot Constitution the proclamation of an emergency is subject to the parliamentary scrutiny of the House of Representatives, which must ratify it by a simple majority (Article 78) and of the president and the vice president, who may exercise their right of veto within 48 hours of the Proclamation (Article 183(1)), in practice, the measures adopted to tackle the coronavirus pandemic were predominantly, if not exclusively, the result of the exercise of executive power.
The original declaration of the state of emergency was not subject to parliamentary approval. Its extension beyond the 30-day limit foreseen by the Constitutional Law on the Security of the Czech Republic was reserved to the Chamber of Deputies. By virtue of Article 5(4) of this Law, the Chamber of Deputies has the competence to annul the declaration of the state of emergency. The Chamber has not used, or even considered using, this competence in the framework of the COVID-19 crisis.
The Danish constitutional order does not provide for a special regime of an emergency situation, so no declaration was made; however, Parliament amended the "Law on measures against contagious or other transferable diseases" which regulates the powers of the executive in the case of an epidemy.
Under The Act 2020-290 of 23 March 2020, the state of emergency is declared by decree in the Council of Ministers (Article 2) and can only be extended beyond one month by law. It is afterwards the legislator who can extend the state of emergency.
Declarations were made at the Lander (regional) level. The declarations of an “epidemic situation of national significance” and the declaration of an epidemic situation in North-Rhine-Westphalia are parliamentary acts. Only in Bavaria it was an act of excecutive. Approval is neither prescribed by law nor was it given.
It is the exclusive competence of the Government to declare the state of danger. Therefore, the consent of the Parliament is not required for declaring (or terminating) the state of danger.
No such declaration of a state of emergency was made. The special regime is introduced and extended by an executive, on the basis of the legislative mandate contained in the pre-existing acts, as amended during the COVID-19 crisis.
The Government used legislative decrees to cope with the pandemic. The declaration made by the executive under the law of 1992 was not submitted to parliament, because the law of 1992 does not provide such submission. It is worth adding that, with the effective rise of the Covid-19 pandemic (end of February), the government decided to complement the declaration, first, with urgent orders of the Ministry of Health (and of the Presidents of the Regions for their respective territories), adopted under Law n. 833/1978 provisions (see Q3), and then with decree-laws (under Article 77 of the Constitution), that were submitted to parliamentary approval (and obtained it).
The Korean executive authorities used powers they have already by virtue of an ordinary legislation (see Q3), constitutional mechanisms of legislation by Presidential decrees (see Q1) was not used. In any event, to use this mechanism the Constitution does not require a separate declaration of the state of emergency.
All Acts of the President of the Kyrgyz Republic to declare a state of emergency in certain territories in accordance with the Constitution were immediately submitted to Parliament for approval. Presidential decrees on the declaration of a state of emergency after discussion were approved by Parliament. Acts of Parliament approving Presidential decrees declaring a state of emergency in certain territories are set out in Q4.
The state of emergency was not declared in Lichtenstein, since this mechanism is not provided by the Constitution (see Q1), consequently, there was no need of parliamentary approval.
On 26 February 2020, the Government declared a nationwide situation of emergency (extreme situation) on the basis of the Law on Civil Protection (see Q2). This declaration is different from the declaration of the state of emergency by the Seimas (or the President, in urgent cases, when Seimas is in recession) provided by Article 144 of the Constitution.
Not applcalbe - no declaration was made, and the executive used ordinary powers conferred by the legislation on health risks.
The administrative police measures were taken by the executive in accordance with the division of powers resulting from the Monegasque Constitution. There was no declaration of urgency in that sense.
It is a law that regulates the state of health emergency, initially adopted by decree-law on 23 March 2020 and then submitted for ratification to Parliament (Law No. 23.20 ratifying Decree-Law No. 2.20.292 of 28 rejeb 1441 (23 March 2020) enacting special provisions for the state of health emergency and the measures of its declaration). On the other hand, the application of the state of health emergency (24 March 2020) was made by the Government, by decree of 24 March 2020 on the basis of the law of 23 March 2020.
Not applicable, since the concept “state of emergency” does not exist in Norwegian constitutional law (but see Q1 for the unwritten rule of necessity). These matters are regulated by ordinary legislation.
The Presidential declaration has not been submitted to the parliamentary approval. The President of the Republic is only required to inform Congress.
The declarations of a state of emergency by the President of the Republic were approved by the Assembly of the Republic, after debate , and in the constitutional form of Resolution (art. 166, (5) of the Constitution), and preceded by consultation with the Government, in accordance with the procedure established in the Constitution and the Organic Law.
Ordinance n. 1/2020 through which the State Secretary for Health and Social Security declared the state of emergency, and the following Ordinances (Ordinance n. 2 and 3/2020), were not per se submitted to the approval of the Great and General Council.
As soon as the first session of the Parliament was held, on 29 April the National Assembly of Serbia confirmed the Decision on Declaring a State of Emergency, as well as all decrees with legal force that the Government had adopted with the co-signature of the President of Serbia and the Prime Minister, during the state of emergency.
No, the declaration of state of emergency is in the hands of the Government solely.
Article 116.2 of the SC states that the Government declares a state of alarm and reports to the Congress of Deputies, which should meet immediately for that purpose. Art. 162 of the Regulations of the Congress of Deputies (RCD) foresees that, after receiving the communication of the declaration accompanied by the decree agreed upon in the Council of Ministers, it shall be referred to the competent committee, which may request such information and documents as it deems appropriate; Art. 165 establishes that the matter will be immediately submitted to the Plenary of the Congress, convened for that purpose if it is not in session.
Not applicable - the constitution does not provide for any state of emergency except in a situation of war
The state of emergency has not been declared in Switzerland.
The first state of emergency declaration was made by the President of the Republic, and was not submitted to parliamentary approval because parliament had been dissolved at that time.
Both decrees were taken by the President of the Republic at the meeting of the National Security Council he chairs, and in the presence of his members ex officio, including the President of the Assembly of People's Representatives, the Head of Government, the Minister of Justice, the Minister of the Interior, the Minister of National Defence.
The state of emergency has not been declared and, hence, has not been submitted to Parliament
The involvement of Parliament consisted of adopting amendments to the current legislation. However, the declaration of the state of emergency was not made by the President and, therefore, Parliament was not required to approve it.
There is no constitutional framework providing for the "declaration for the state of emergency", but the Government enjoys exceptional regulatory powers to issue emergency regulations under the CCA (see Q2), and those regulations are subject to the approval by Parliament.
At Federal Level: Since President Trump issued the federal declaration of a national emergency concerning COVID-19 as a proclamation, the declaration was not subject to congressional approval or review. The source of the President’s power to make such proclamations comes from his Article II Commander-in-Chief powers—specifically the take-care clause —as well as from express or implied statutory approval from Congress.
Albania
During this period the Government issued normative acts having the force of law under Article 101 of the Constitution, which were submitted to Parliament and approved thereby on 16.04.2020
Armenia
The Decree and its subsequent amendments have been respectively submitted to the National Assembly.
Austria
Azerbaijan
Belgium
In Belgium, there is no provision in the Constitution or the laws allowing a state of emergency to be declared. So, the Belgian federal Parliament has not been consulted by the Government on introducing special measures, such as quarantine rules, social distancing measures, the closure of schools, shops and businesses, the application of teleworking, etc. On the other hand, the Parliament granted “special powers” to the King (see Q2), empowering him (i.e. in fact the federal government) to take all necessary measures to combat the spread of the coronavirus COVID-19.
Bosnia and Herzegovina
Bulgaria
Cyprus
The role of the parliament has been qualified as that of an 'observer” that nonetheless can intervene in amending the relevant law, the Quarantine Law (being amenable to modifications/changes).
Czech Republic
Denmark
France
In the specific case of COVID, in the absence of a provision on the state of health emergency, Article 4 of the law referred to above directly declared a two-month state of emergency.
The extension was decided by Law 2020-546 of May 11, 2020. The state of emergency will end on 10 July 2020 under Article 1 of the Act. A further extension is only possible by virtue of another law.
Thus, in the context of COVID, the state of health emergency was declared by the law itself and not by a governmental decree.
As the state of emergency was lifted on 10 July 2020, a law provided for the need for orderly management of the exit from the state of emergency (currently being published as of the date of this note).
Germany
Hungary
Article 53 Paragraph (2) of the FL entitles the Government to adopt decrees by means of which it may, as provided for by a cardinal Act, suspend the application of certain Acts, derogate from the provisions of Acts and take other extraordinary measures in a state of danger. These decrees shall remain in force for fifteen days, unless the Government, on the basis of authorisation by the National Assembly, extends those decrees.
After declaring the state of danger on 11 March, the Government issued several decrees on emergency steps to combat the threat of the virus. The Act XII of 2020 on the containment of coronavirus confirmed these regulations and authorised the Government to extend the applicability of the government decrees adopted in the state of danger until the end of the period of state of danger.
As the end of the pandemic was not to be foreseen or determined, the Act did not include an end date for this authorisation. However, the Act expressly gave the National Assembly the power to revoke the authorisation, either in general or in the case of specific measures, accorded to the Government, at any moment Parliament sees appropriate.
The Act further stipulated that the Government is required to keep Parliament informed about the measures adopted (were the Parliament not in session, the Speaker of the House and the heads of the parliamentary groups would be informed). These provisions keep a very strong control in the hands of the National Assembly and ensure that the extraordinary measures apply only as long as strictly necessary in order to protect citizens’ health and security.
According to Act LVII of 2020 on terminating the state of danger, the Act XII of 2020 on the containment of coronavirus was repealed on the day of the termination of the state of danger (i. e. 18 June 2020).
Ireland
Italy
Furthermore, these decree laws enabled the Prime Minister to adopt (governmental) decrees for coping with the emergency in the short term. These did not need Parliament’s approval, and for this reason the government was criticized by the media and by some constitutional scholars. Later the government decided that the Prime Minister would inform Parliament about these decrees’ implementation every two weeks.
Korea, Republic
Kyrgyzstan
Liechtenstein
Lithuania
The state of emergency, as provided for under the Constitution and specified in the Law on the State of Emergency, was not declared in Lithuania due to the Covid-19 pandemic. Therefore, the relevant constitutional provisions and the Law on the State of Emergency were not applicable when decisions were taken in relation to the Covid-19 pandemic. Instead, a state-level situation of emergency was declared without determining its duration and quarantine was introduced in the entire territory of Lithuania for three months. This declaration did not require a parliamentary approval.
Initially, the quarantine was introduced for two weeks and, subsequently, it was extended several times, mostly for a period of two weeks each time. The quarantine was effective until 16 June 2020, 24:00 (in total, for 3 months since its introduction), and it was revoked by the resolution of the Government of 10 June 2020 (entering into force on 17 June 2020). As mentioned above, the state-level situation of emergency was declared without determining its duration, until the Government would adopt the resolution lifting the situation of emergency.
Mexico
However, if President issues emergency decrees, the should be submitted immediately for approval to Federal Parliament (see Q1)
Monaco
Morocco
Norway
Peru
Portugal
San Marino
However, Decree-Law 28 February 2020 n. 35, which attributed the power to declare the state of emergency to the Secretary of State for Health and Social Security, was adopted by the Congress of State as an urgency decree in accordance with Article 2, paragraph 2, letter b) of Constitutional Law n.183/2005. Accordingly, it was then submitted to the Great and General Council for its approval as per Article 9, paragraph 5 of Qualified Law n. 186/2005 and Article 3, paragraph 2, letter b) of Qualified Law n. 2/2010. The Great and General Council ratified Law-Decree n. 35 during its meeting on the 27th of April 2020.
Serbia
Slovakia
Spain
The Plenary Session of the Congress of Deputies was effectively convened for 18 March. In this session, the Prime Minister explained the reasons and content of the declaration of the state of alarm, followed by a debate with the intervention of the spokespersons of the different parliamentary groups. Each extension of the Declaration requires a previous authorization of the Congress.
Sweden
Switzerland
As pointed out above (see answer to Q4), the Federal Council has defined the Covid-19 crisis an “extraordinary situation” under Article 185 al. 3 of the Constitution and under Article 7 of the Epidemics Act. The Federal Council was authorised by the Constitution and by law to take this decision without the involvement of Parliament.
Article 7d of the Government and Administration Organization Act of 21 March 1997 stipulates that emergency ordinances of the government must be ratified by Parliament after six months at the latest
North Macedonia
The first and second decisions declaring a state of emergency were adopted with the goal of protecting and dealing with the consequences of the spreading of COVID-19.
The third declaration of a state of emergency was mainly aimed at giving a possibility to the Government to adopt economic measures assisting those who suffered economically as a consequence of the epidemic.
Tunisia
Article 80 of the constitution stipulates that the measures taken by the Head of State of State of State of Emergency take place after consultation with the head of government, the president of the assembly of representatives of the people and after informing the president of the constitutional court. Except that the constitutional court is still not constituted, so performing constitutional formalities proves to be impossible.
Turkey
Ukraine
As to the decisions of the Cabinet of Ministers to impose quarantene, they are not subject to parliamentary approval, according to the law.
United Kingdom
When emergency regulations are made under the CCA, they must be laid before Parliament as soon as reasonably practicable (s. 27(1)(a)). Once laid, they will lapse within 7 days unless each House of Parliament passes a resolution approving them (s. 27(1)(b)). Parliament may by resolution of both Houses annul or amend the emergency regulation (s. 27(2)(3)), although Parliament doing so does not prevent the making of new regulations (s. 27(4)(a)). If Parliament is prorogued, or either House is (or both Houses are) adjourned at the time the regulations are made, Parliament or the House in question must be recalled to meet within 5 days (s. 28(1)-(3)).
Further, if the regulations relate wholly or in part to Scotland, Wales, or Northern Ireland, a senior Minister of the Crown must consult the relevant devolved executive (s. 29(1)-(3)), although this requirement can be waived if the situation is urgent, and a failure to consult does not affect the validity of any subsequent emergency regulations (s. 29(4)).
This scrutiny notwithstanding, this reflects a significant law-making power for the executive. These emergency powers are constrained in duration, and contain protections for human rights, but are otherwise vast in scope.
As to specific legislation on health hazards (PH(CoD)A) - see Q3. In England and Wales the Public Health (Control of Disease) Act 1984 (PH(CoD)A) allows the executive to make regulations; a regulation promulgated under s. 45C of this Act, which imposes or enables the imposition of a special restriction or requirement, may not be made unless it has been laid before Parliament in draft and approved by a resolution of each House of Parliament, or in the case of Welsh regulations, before the National Assembly for Wales (s. 45Q(4)). However, if the appropriate minister determines that, by reason of urgency, it is necessary to make the regulation without the draft being laid and approved, the regulation can be made without these steps being taken (s. 45R(2)). Once a regulation is made under this emergency procedure, it must be laid before each House of Parliament or the National Assembly for Wales, as applicable (S. 45R(3)). Regulations made under this procedure will cease to have effect at the end of a period of 28 days beginning with the day on which the order is made unless approved by resolution of each House of Parliament, or of the National Assembly for Wales, as applicable (s. 45R(4)); or if rejected by either House of Parliament, or the National Assembly for Wales, before that point, at the end of the day on which the regulations were rejected (s. 45R(5)).
Similar provisions on the parliamentary approval of emergency regulations on health hazard grounds exist in N. Ireland and Scotland, as regulated by the Coronavirus Act 2020 (“CA”) - see Q3.
In addition, the Covid Act (the CA) passed in 2020 is of a clearly temporary and exceptional nature, which is indicated by two provisions: the major provisions of the Act will cease to apply after two years (s. 89). This can be extended, but only by six months at a time (s. 90(2)-(3)). There is a power to bring forward the expiry date of the Act (s. 90(1)). The Act is subject to six-monthly parliamentary review (s. 98), at which point the House of Commons may decline to accede to a motion that the CA not yet expire. If the House so declines, the power in s. 90(1) must be exercised to bring forward the expiry date of the CA to not later than 21 days after the rejection.
United States of America
At State Level:
GA: As a public health emergency, the declaration was required to be submitted to the legislature for its approval in a special session. O.C.G.A. 38-3-51(a). It was approved. Going forward, the state legislature can terminate the state of emergency at any time by concurrent resolution; this does not require the consent of the governor. O.C.G.A. § 38-3-51 (a).
NE: The state-of-emergency declaration was not required to be submitted to the legislature for its approval, but the (unicameral) legislature can terminate the state of emergency at any time. Neb. Rev. Stat. 81-829.40 (3).
NY: The declaration establishing a disaster emergency did not require prior legislative approval, since it was issued by the governor by executive order, nor does the legislature have the power to terminate it. N.Y. EXEC. LAW § 28 (McKinney 1981).
WA: The declaration was not required to be submitted to the legislature for its approval, nor does the legislature have the power to terminate it. Rev. Code Wash. (ARCW) §43.06.010 (12).
WI: The declaration establishing a health emergency did not require prior legislative approval, as it was issued by the governor by executive order. However, “the executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.” WIS. STAT. § 323.10 (2009).