The Netherlands has taken stringent measures in the fight against the COVID-19 coronavirus. Citizens are expected to remain at home if they experience cold or flu symptoms such as a runny or blocked nose, coughing, sore throat or fever. More generally, the limiting of social contacts and visits to vulnerable people is strongly recommended. Hospitality establishments and schools have been closed and gatherings of more than 100 people prohibited.
Despite this, we in the Netherlands may still go the hairdresser's, go shopping or go out and about with friends and family. Public playgrounds are open and being used as usual. There is no sign of anything like a lockdown - whereby public life is brought to a complete halt - in the Netherlands. In other countries, it is a different story. In the news, it is being reported that Italy, Spain, France and now also Belgium are all under lockdown (albeit limited, in some cases).
In this, the fifth blog in Kennedy Van der Laan’s series on issues of public law in relation to the COVID-19 crisis, we take a closer look at the question of how a lockdown comes about. To read our earlier blogs, please visit: ‘What can municipal government and the security regions do to rein in the coronavirus crisis?’, ‘Should the COVID-19 crisis be considered an emergency?’, ‘Avoiding empty shelves in time of crisis: COVID-19 and the Dutch Hoarding Act’ and 'The legal basis for measures to combat COVID-19 in the hospitality and events industry'.
Is there sufficient reason for a lockdown in the Netherlands?
Yesterday a debate took place in the Dutch Lower House of Parliament (Tweede Kamer) on the question of whether the Netherlands should be placed under lockdown. The government is of the view that it should not be assumed that a lockdown is necessary in the effort to combat the coronavirus. According to the government, aside from the unpredictable duration of such a measure and the very far-reaching social and economic implications thereof, there is a considerable chance that the COVID-19 coronavirus will re-emerge once lockdown measures are relaxed. Therefore, endeavouring to protect society against the coronavirus by means of a lockdown is pointless, according to the government. Instead, the choice has been made for a strategy whereby the virus spreads among the population in a controlled way, with increasing numbers of people building up immunity as a result. The intention here is that vulnerable groups will be protected from the virus.
But this in itself does not mean a lockdown in the Netherlands has been ruled out. Where that is concerned, as in other countries, the capacity of the healthcare system, and in particular Intensive Care Units, is crucial according to Prime Minister Rutte. France and Belgium have now chosen for temporary lockdown, because the ICUs in those countries are approaching capacity. According to Rutte this could also happen in the Netherlands, but as yet, we have not needed to take such a measure.
It is therefore not inconceivable that, in the future, the Netherlands will as yet decide to go into lockdown, if so many people were to get ill that hospitals can no longer cope. And how would that be brought about?
The legal basis
One important ground for a lockdown is found in Section 8(1) of the Dutch Civil Authority Special Powers Act (Wbbbg): “Our Minister of Security and Justice and the King's Commissioner are empowered to limit outdoor activity.” On the basis of this provision, citizens may be restricted in their freedom to go outdoors.
The competence under Section 8 Wbbbg may be activated if ‘exceptional circumstances necessitate this’ (Section 1 Wbbbg). This may happen in either of two ways. Firstly, through the declaration of a general or limited state of emergency (you can read more about this in our blog ‘Should the COVID-19 crisis be considered an emergency?’). In activating a state of emergency (even in limited form), various far-reaching competences are activated, including the competence under Section 8 Wbbbg. Another possibility is to put that provision (Section 3 Wbbbg) into operation separately. As with the declaration of a state of emergency, that would need to be done by way of Royal Decree on the recommendation of the Prime Minister.
Potential features of a lockdown
Section 8 Wbbbg does not place any restrictions on the manner in which public activity might be limited. This leaves room for interpretation in the implementation of the lockdown.
One option would be to only allow public activity for strictly necessary movement, such as would presently appear to be the case in Spain and France.
According to news reports, Spaniards may only leave their homes to go to work or to do strictly necessary shopping, such as at the supermarket or pharmacy. Attending mass on Sundays remains permitted, but going to the beach or taking a walk in the park is not. The army patrols the streets, and is reported to send anyone home who cannot prove they have gone out of their houses with good reason. In France, too, according to news reports, a number of urgent reasons have been specified, and anyone who is out on the streets must have a special form with them stating the reason for their movement. According to Amsterdam newspaper Het Parool, Belgium has taken a somewhat softer approach. There, going outside to get some fresh air remains permitted.
Such measures could thus also be taken in the Netherlands on the basis of Wbbbg.
If you have any practical or theoretical questions concerning these forms of lockdown or the broader concept, please feel free to contact Jan van der Grinten or Jutta Wijmans.