Abstract
This paper examines, in the light of the COVID-19 crisis, the room for judicial oversight of health crisis measures based on the public’s expectations of how governments should act in the interplay with experts. The paper explains how trust theory and procedural rationality review help to address concerns related to legitimacy and expertise. The paper argues that courts should distinguish between two stages. In the initial stage, fear as a driver for government support based on expertise justifies that the proportionality test is limited to the question of whether measures were based on virologist expert advice. In the next stage, people expect the government to take expert-informed decisions, but also require that the government takes into account societal needs. Procedural rationality review in this stage demands that courts examine whether the decision was based on an informed balance of rights and interests.
Highlights
This paper examines, in the light of the COVID-19 crisis, the room for judicial oversight of health crisis measures based on the public’s expectations of how governments should act in the interplay with experts
This paper examines what room there is for judicial supervision of the health crisis measures based on the public’s expectations of how governments should act in the interplay with experts
We entered the predictors as fixed effects in the regression model to control for unobserved heterogeneity across individuals, as a Hausman test indicated that the independent variables were not exogenous
Summary
This paper examines, in the light of the COVID-19 crisis, the room for judicial oversight of health crisis measures based on the public’s expectations of how governments should act in the interplay with experts. Scholars have argued that courts should assess whether governments use public health expertise when limiting fundamental rights.[4] This view seems to reduce governments to the rubber stamping of medical and virological experts This may have been appropriate in the first stage of the pandemic outbreak. The paper argues that the reasons for deference, far from justifying an abdication of judicial scrutiny, call for procedural rationality review that, after the initial stage, cannot rely on the consideration of expert advice alone It holds that the room for legitimate judicial scrutiny is inversely proportional to the government’s discretion defined in terms of public trust, and that within the boundaries of legitimate judicial scrutiny a procedural rationality check overcomes the expertise concern. A case study provides anecdotal evidence for the assumption that, as a result, the court’s stance shifts in the second phase
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