The sixth wave of the covid has forced us to take steps back in the progressive de-escalation that Spain undertook on June 9, when the second state of alarm decreed by the Government during the health crisis was lifted. Without this legal instrument, which establishes the central Executive as the sole authority on health matters, the communities recovered – some reluctantly – their health competencies and became responsible for deciding what measures were applied in their territory. The omicron variant has imposed a script change, but only Catalonia, Murcia, the Canary Islands and Cantabria have agreed to rescue some of the restrictions that were in force a few months ago. The rest are reluctant to decree restrictive measures on the eve of Christmas and look askance at the central Executive so that it is the one that agrees on general actions, but the Government has only proposed, for now, the return to the mandatory use of masks in the Exterior.
Could the Government impose other actions or limit rights for all of Spain without a state of alarm? It depends on which ones. The mandatory use of masks indoors and outdoors was collected in the Law of urgent prevention, containment and coordination measures to face the health crisis approved in February 2021, so when the Executive decided to eliminate them in the open air, it was enough to approve a royal decree-law modifying that section of the regulation in the Council of Ministers that was later validated in Congress. The same will happen now to return to the obligation. But this formula is not valid to impose other measures that are not regulated in state laws and that some communities have requested, such as the curfew or the limitation of hours. Without a state of alarm, the authorities in health matters are the communities.
Autonomous governments can adopt measures in their territory such as restricting capacity, reducing the hours of restaurants or entertainment venues or even closing nightlife. For this they do not need judicial endorsement and almost all of them have already had similar initiatives in force after the state of alarm. Some of them have been appealed by affected individuals or groups (such as hospitality associations) and the judges have agreed with the communities if the measure was well motivated in health parameters such as the high incidence of the virus in a certain area.
This route can also serve communities to enact other measures that are being talked about these days, such as avoiding crowds on specific dates such as New Year’s Eve. Communities, and even municipalities for certain local events, are competent to establish the capacity of public spaces.
Governments find it more difficult to agree on actions that imply a limitation of fundamental rights, such as a curfew or the prohibition of entering or leaving a territory. These measures require the endorsement of the higher courts of justice and, although the Government created an express appeal before the Supreme Court to try to create a single jurisprudence, in practice there have continued to be discrepancies between the courts of one community and another. However, the regional judges and, above all, those of the high court have been marking a path that endorses the restriction of fundamental rights, although not in a generalized way for the entire community, but only when it is justified that it is “indispensable” and limited in space and time. This has led regional executives to adjust their measures and limit the most restrictive ones to the municipalities with the highest risk of contagion.
Interterritorial Council
Although without a state of alarm, the central government loses the character of the sole health authority, the Executive does have in its hand an instrument that has already been used in the pandemic and that could serve to implement actions in a generalized way: the Interterritorial Health Council, a cooperation body where the Ministry of Health and the communities sit. The Supreme Court has equated this body to a Sectorial Conference, which implies that it can reach agreements by majority that are obligatory for all, including for the autonomies that vote against. Thus, it was agreed, for example, in September 2020, before the second state of alarm, to restrict mobility in populations that exceeded 500 coronavirus cases per 100,000 inhabitants and had a test positivity rate greater than 10% and an occupancy. of covid patients in ICUs above 35%. The Community of Madrid, which voted against because the measure implied the closure of its capital and nine other municipalities, announced that it would not comply with the measure and the Government ended up decreeing an exclusive state of alarm for this community.
Through this route, Health and the communities can adopt both mandatory measures and recommendations. In order for them to be imposed on all territories, the agreements reached by the plenary session of the Interterritorial Council must be adopted under the formula of coordinated actions in public health and published in the State official newsletter. In the event that these agreements imply limiting fundamental rights, the measure will also require judicial endorsement, but in this case not from the regional courts, but from the National High Court, which dissipates the legal uncertainty that the regional presidents complain about. when the measure depends on the judges of your community. The decision made by the central courts can be appealed and the Supreme Court’s contentious chamber would once again have the last word.
The president of Castilla-La Mancha, Emiliano García Page, alluded to this option after the conference of presidents held this Wednesday. “People demand a certain unity. I would not be against an Interterritorial Health Council to protect, in the face of the courts, decisions of some communities, even if they do not apply to the whole of the country, but that they serve them so that they are valid in the face of their higher courts. I have lost the battle with the Supreme Court of Castilla-La Mancha beforehand and if I had to make decisions tomorrow they would be, more than for Christmas, for Carnivals, between appealing to the Supreme Court and waiting for the conclusions, “he warned.
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