Did the Cabinet have the right to cage us?
Never before in post-war history have human rights been so severely curtailed as during the corona crisis. As a member of the Netherlands Institute for Human Rights, Nicola Jägers makes sure that this does not get out of hand. ‘The government may limit rights but only if it has very good reasons to do so.’
Human rights are like water. You hardly worry about them if you can enjoy them undisturbed. Until you can’t. Then you realize that what you thought was normal can no longer be taken for granted. This is what we experienced during the corona crisis. All of a sudden we were no longer allowed to gather in large groups, go to work, or visit granny and grandad. It took some getting used to, being in lockdown. It was a special time for everyone. But particularly for Tilburg professor Nicola Jägers. Human rights, the subject that she teaches and on which she conducts research, are suddenly in the spotlight. As a result, she is busier than ever. Also because she is one of the ten members of the Utrecht-based Netherlands Institute for Human Rights, that plays a crucial role in ensuring that the corona measures in the Netherlands do not go too far. The Institute has advised the Dutch government on this point several times. Despite her busy schedule, she found the time to talk to us about her important social task.
You can hardly name a human right that was not affected
In Spain, Japan, and Hungary, a state of emergency was declared. Why not in the Netherlands?
“There was no need. That is because the human rights system, as laid down in the Constitution and human rights treaties, offers possibilities to impose measures to restrict people’s liberty. It leaves room for balancing individual rights and greater public interests. The corona crisis was about public health versus such rights as freedom of movement, the right to protest, the right to housing, and the right to education. You can hardly name a human right that was not affected.”
On what conditions is a government allowed to curtail certain rights?
“Measures must meet a number of criteria. They must be legitimate, based on the legality principle, and serve a clear purpose. They must also be proportional; the restriction of freedoms must never exceed the remit of the higher purpose, in this case, public health. And options to impose lighter measures must always be explored. Those are the things that judges take into account when they test the application of human rights. The government has the duty to investigate whether decisions meet these criteria.”
You have urged to expedite the introduction of a special Act of Parliament dealing with the current crisis. Why?
“So far, all really far-reaching measures have been based on emergency orders and decrees, using the frameworks provided in the Municipalities Act (Gemeentewet) and the Public Health Act (Wet publieke gezondheid), but they can hardly be democratically checked or tested by the courts. Without a special Act of Parliament, sound testing is impossible.”
What must we be able to check?
“How the government has balanced interests, whether the restrictions can be justified, and whether there were feasible alternatives. This has given rise to weird situations. Not very long ago, a ban on face-covering clothing in public transport was introduced. You can be fined in public places if your face is covered. However, since June 1, it has been compulsory to wear a face mask on all public transport. What if you also wear a head scarf? Will you be fined, too? Probably not, since banning headscarves is an infringement of the freedom of religion.”
Without a special Act of Parliament, sound testing is impossible
You saw clear risks in the initial corona emergency Bill …
“We did indeed. One concern involved allowing things for certain categories of people and not for others, for instance, youngsters being allowed to go to the gym, but not older people. It carries the risk of age discrimination. You may be able to justify it but it requires special and strong motivation. Another risk was that a fine for infringing a corona measure could lead to a criminal record. We do not think that this meets the proportionality principle. Something that should be stated more clearly in the Bill is that measures are based on scientific insights. As regards the 1.5-meter rule, it was stated that a distance of less than that was also OK. That undermines the impression that the rule has a scientific basis.”
Is that 1.5 meter distance really a human rights issue?
“Not in itself. It can be compared with the distance you observe in traffic for safety purposes. Distancing became a human rights issue because of all the exceptions that were made. In health care or within one household, for instance, you did not need to observe that 1.5 meter distance. So you restrict one person’s freedom of movement but not another’s. You get a lot of questions: does student accommodation qualify as a household? Can you just go to a student party? The list of questions that required clarification is endless. And you want that clarity to be able to maybe better balance pros and cons the next time and to limit freedoms as little as possible.”
A government has the power to restrict these freedoms, but that requires sound justification
Some important questions are involved …
“Yes, indeed. For instance, the question of why church services were allowed to continue at first. The argument was that an emergency order should not conflict with the Constitution, in which the freedom of religion is enshrined. On the other hand, the right to protest was in fact restricted even though it, too, is a fundamental right. A government has the power to restrict these freedoms, but that requires sound justification.”
The Institute has also warned about the use of the corona app. What standards do you think it should meet?
“We insist on the voluntary use of the contact tracing app. And on the fact that such an app should exclude nobody. In our opinion, use of the app should not be compulsory, for example, as a condition to being allowed to use public transport. Furthermore, we think that it should be easy to use in the sense that semi-literate people and the elderly should be able to use it.”
Do you expect that there will be more interest for human rights as a result of the corona crisis?
“I do hope so. We realize now how much we need them.”
Human rights could use some publicity?
“In the Netherlands certainly. The awareness about human rights is at an embarrassingly low level here. In Europe, Dutch youngsters rank lowest where knowledge of human rights is concerned. They just about know the freedom of speech, but they hardly know any other ones. They have a lot to learn.”
A bit of a luxury problem perhaps?
“I guess so. Most young people here grow up in good and safe environments. They do not need to worry about their freedom, or very little at least.”
Can the corona crisis increase the awareness of human rights?
“We have now seen that freedom is not a thing to be taken for granted. And you notice that there is more enthusiasm among young people to stand up for fundamental rights, for example, during demonstrations. This was noticeable even before the corona crisis.”
The attention for human rights may soon fade if that second wave does not materialize.
“That need not be the case. Suppose there is a vaccine. That will raise questions like: who will get it? And: is that vaccine accessible for everyone? That type of questions also concern human rights issues. It is about access to health care. I see risks there, too. We are not done with the fallout of the corona pandemic. Not by a long shot.”
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Date of publication: 4 August 2020