Uncertainty, Administrative Decision Making and Judicial Review. The Courts’ Perspectives

Abstract

The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to manage emergencies and contribute to govern crisis management. Although the analysis shows that differences exist across countries, depending on institutional varieties and political contexts, the experience of COVID-19 has shown that, even in times of emergency, courts can adapt, and provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, with different intensity across countries, to ensure that governments took the necessary measures to contrast the pandemic, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and along the multiple phases of the health crisis. Differences in the balancing have emerged compared to ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision making, and new balances between precaution and evidence-based approaches. The role of scientific evidence in political and administrative decision-making has been at the core of judicial review aimed at ensuring transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants, partly associated with the different national legal traditions, have been used to scrutinise the legality of restrictive governmental measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.