Ejcl Article p56 - 4

European Journal of Comparative Law and
Governance 9 (2022) 56–78
Executive Powers During the covid-19 Epidemic

The Legal Position in England-Wales and Germany Compared
Wladimir von Samsonow | ORCID: 0000-0002-8736-0847

LLM student, Department of Law, LMU University, Munich, Germany
w.von-samsonow@outlook.com
Abstract
This article aims to explore the consequences of covid-19 related laws upon democracy,
concentrating on the separation of powers and the system of checks and balances.
To analyse the effectiveness of measures, a comparison between England-Wales and
Germany is made, in order to compare how two countries with similar demographic
and economy, but different constitutional and political systems, have dealt with
the epidemic. The main question that is being asked and answered is whether a
constitutional crisis has taken place. And finally, the analysis how the judiciary has
been the most helpful branch in the separation of powers to uphold a system of checks
and balances during the epidemic in both England-Wales and Germany.
Keywords
covid-19 – coronavirus – executive – constitutional comparative law
Introduction
In January 2020, a new highly infectious and deadly virus started to spread,
which within a couple of months caused a global pandemic. Many govern-
ments were not prepared for such an emergency situation, which resulted in
a concentration of legislating powers within the executive. Therefore most
covid-19-related legislation in the UK has taken form of secondary legislation
© koninklijke brill nv, leiden, 2022 | doi:10.1163/22134514-bja10028

Downloaded fromBrill.com06/05/2023 08:12:47AM
via Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht
executive powers during the covid-19 57
made and passed by the executive, not undergoing lengthy parliamentary

scrutiny.
The aim of this dissertation is to explore the consequences of such steps
for democracy, concentrating on the separation of powers and the system of
checks and balances. The importance of such analysis lies in the fact that a
pandemic is potentially a challenge to existing structures and in particular the
notion of democracy causing disruptions within constitutional law. I will ana-
lyse the response of England-Wales and Germany through comparative-law.
A comparative-law approach,1 is fruitful for this study for two main reasons.
First by analysing two different countries’ legal constitutional basis, one can
explore which system may be better prepared or not, and then extract the ben-
efits and disadvantages of the systems to see what the systems can learn from
each other. And secondly by analysing how the two different countries have
responded to the pandemic, one can again draw conclusions on what meas-
ures were effective or not and analyse what the governments can learn from
each other.
I have chosen Germany for the comparative study with England-Wales as it
has been similarly affected by the pandemic (though at a different pace), fur-
thermore it has similar demographic and economy. However it’s constitutional
law differs as it has a codified constitution, with different legal principles that
I will outline below. Additionally, being part of the civil law legal family it has
more codified legislation, which as I will outline below has also been relevant
during this pandemic.
I will firstly outline the legal position in England-Wales followed by
Germany. Within the outline of the legal positions I will include my finding
of micro-comparative law nature within the legislation.2 The legislation that I
will analyse will concentrate on the limitation of human rights.
Afterwards I will move to a more macro-comparative law approach,3 by ana-
lysing how the separation of powers has been affected during the pandemic,
and what problems this has caused. Again my analysis will be concentrated on
the impact upon human rights, which resulted from a potential disruption in
the democratic system. Finally I will conclude my comparative analysis with
comparing the role of the judiciary as a balance within the systems of separa-
tion of powers in England-Wales and Germany.
1 See e.g., Thomas Lundmark, Charting the Divide between Common and Civil Law (oup,2012) at
10 for purposes of Comparative Law.
2 Lundmark, Charting the Divide between Common and Civil Law (n 1) pages 22–23 for comparison
of sources of rules and legal institutions.
3 Ibid. page 25 for comparison of legal systems.
European Journal of Comparative Law andDownloaded

from Brill.com06/05/2023 08:12:47AM
58 von samsonow
The aim of this dissertation is not to undermine the importance of the

introduction of covid-19 related legislation in order to save lives and avoid a
collapse of the health system. The focus is on the question whether the same
goals could be achieved with a more democratic system of separation of pow-
ers through a stronger system of checks and balances between the executive,
the legislative and the judiciary.
The Executive
In order to assess whether a potential disruption of the democratic process

has taken place, I will firstly outline the legal basis of how the executive gained
very extensive powers to make legislation during this pandemic in England-
Wales and Germany.
Legal Position in England and Wales
Parliament has foreseen the possibility of a public health emergency by pass-

ing the Public (Control of Disease) Act 1984 (as amended),4 and the Civil
Contingencies Act 2004.5 Both Acts allow extensive powers to the executive
to pass secondary legislation. Furthermore, Parliament has also passed the
Coronavirus Act 2020 during the pandemic.6 I will firstly briefly outline the
powers under the Coronavirus Act, and I will finally concentrate on secondary
legislation passed under the 1984 Act.
On 10 March 2020 the Government implemented the Health Protection
(Coronavirus) Regulations 2020,7 in order to enforce measures needed for
stemming the already ongoing covid-19 epidemic.
On 25 March 2020 the Statutory Instrument, was substituted by the
Coronavirus Act 2020. It is important to note that the powers granted under the
2020 Act can only be used in response to the coronavirus. For the purposes of
this essay I will only outline a few powers granted to the executive. Temporary
suspension of some duties of local authorities to provide health and social
care to individuals.8 Powers to order closure of schools and other childcare
4 Public Health (Control of Disease) Act 1984 (as amended).

5 Civil Contingencies Act 2004.
6 Coronavirus Act 2020.
7 Health Protection (Coronavirus) Regulations 2020.
8 Coronavirus Act (n 6) s. 10 and Schedules 8 – 11.
European Journal of Comparative Law and Governance 9 (2022) 56–78

Downloaded from Brill.com06/05/2023 08:12:47AM
and training provision.9 Obligation to be tested for coronavirus empowered by

public health officials, police officers and immigration officers with reasonable
ground to believe that the individual in question is infected. If the individual is
tested positive or if the test is inconclusive, activities may be restricted if nec-
essary and proportionate in the interests of the person, or for public health.10
Public gatherings may be restricted or prohibited, premises considered as high
risk for the spread of Coronavirus can be closed or restricted, through a process
for the appropriate government ministers and officials, provided by Section
52 along with Schedule 21.11 Furthermore, for individuals who are required to
remain in isolation, judicial protection is offered by route of an appeal to a
court.
As mentioned above, Parliament has foreseen that epidemics might take
place and has passed two Acts in order to regulate executive powers: The
Public Health (Control of Disease) Act 1984 (as amended), and the Civil
Contingencies Act 2004.
Interestingly, many powers found in the provisions of the Coronavirus Act
2020 are very similar to the powers granted to the government (in cases of
emergency) under Part 2 of the Civil Contingencies Act 2004.12 Therefore, no
new act would have been necessary to deal with the health crisis. The 2004
Act more broadly deals with ‘emergencies’ as per Section 19 (1), which includes
damage to ‘human welfare’. Section 19 (2) of the 2004 Act defines this as includ-
ing loss of human life or human illness.13 It is in my opinion hard to argue that
the covid-19 epidemic would not fit into the above-mentioned category.
Blick and Walker argue that the Government has not made use of the pow-
ers under the 2004 Act since any measures adopted under Part 2 of the Act
are subject to substantial control and oversight by Parliament.14 In fact, any
regulation adopted under Part 2 will expire after 30 days (unless an earlier
date is found in the regulation itself) as per Section 26. Furthermore, under
Section 27, Parliament must approve all regulations made under the act by
positive resolution of both the House of Commons and the House of Lords.15
9 Coronavirus Act (n 6) s. 37 – 38 and Schedule 16.

10 Coronavirus Act (n 6) Schedule 21 para. 23.
11 Coronavirus Act (n 6) Schedule 22, para. 3.
12 Civil Contingencies Act (n 5) Part 2.
13 Ibid. S. 19 (1, 2).
14 Andrew Blick, Clive Walker, 2020. ‘Why did government not use the Civil Contingencies
Act?’ The Law Society Gazette, 2 April. Retrieved 22 April 2021, https://www.lawgazette.co.uk/
legal-updates/why-did-government-not-use-the-civil-contingencies-act/5103742.article.
15 Civil Contingencies Act (n 5) S. 26, 27.

60 von samsonow
The Government has justified the implementation of the Coronavirus Act

2020, arguing that the 2004 Act was not flexible enough to grant powers for the
government to effectively deal with the ongoing epidemic.16 Nonetheless, this
is only partly true, as the government can forward revised legislation under
Section 26 of the 2004 Act during the 30-day period, which would be in force
for 30 more days, if approved by Parliament.
The primary legislation that has been used to limit most fundamental free-
doms has been the Public Health (Control of Disease) Act 1984 (as amended).
Secondary legislation,17 has been implemented through Part ii A Section 45C
1984 Act,18 introduced by the Health and Social Care Act 2008:19
‘The appropriate Minister may by regulations make provision for the pur-
pose of preventing, protecting against, controlling or providing a pub-
lic health response to the incidence or spread of infection or contam-
ination in England and Wales (whether from risks originating there or
elsewhere).’20
Not all powers are specified, but Section 45 F of the 1984 Act does offer an
extensive list which expands upon the term ‘powers’.21 Section 45 P (1) fur-
ther specifies that these powers are exercisable through regulation made by
Statutory Instrument.22 These si s have been passed without Parliamentary
scrutiny or approval, which is allowed in emergencies under Section 45 R of
the 1984 Act.23
Legal Position in Germany
In order to understand and outline the path that the German Government
has taken to stem the ongoing covid-19 epidemic, I will briefly explain some
aspects of the German legal system. For the purposes of this essay I will con-
centrate on parts of the German legal system which are relevant to understand
the laws and how these have been implemented during the covid-19 crisis.
16 hc Deb 23 March 2020, vol 674, col 132.

17 si 2020/350 Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
18 Public Health Act (n 4) s. 45 C.
19 Health and Social Care Act 2008.
20 Public Health Act (n 4) s. 45 C (1).
21 Public Health Act (n 4) s. 45 F.
22 Public Health Act (n 4) s. 45 P (1).
23 Public Health Act (n 4) s. 45 R.

There are two main elements that differentiate the legal system of England-
Wales, and the German legal system. The first element is that Germany has a
written constitution, the “Grundgesetz” (from here on referred as ‘gg’).24 It
could be argued that this is relevant in any crisis such as wars, or in this case
a health crisis. This is because when the Government passes any legislation it
must be in accordance with the constitution, therefore there is a strong control
mechanism for human rights.
As I will expand below, fundamental rights guaranteed by the gg, cannot be
abolished, but only limited under the principle of “Verhältnismäßigkeit” (pro-
portionality).25 Under the principle of proportionality the more a fundamental
right is being limited, the higher the threshold for the justification becomes.
For example if a medical officer is entering the home of an infected (or pre-
sumably infected) person, this action would infringe with the inviolability of
the home (protected under Art. 13 para. 1 and 7 gg).26 However, this is justi-
fied as assessing whether the suspected person is positive or not protects the
right to health and life of third parties, which in a pandemic is interpreted as
a higher right.
The second element is that Germany is a Federal Republic, divided in 16
different Federal States. This means that there are 16 state executive powers
as well as the Federal Executive vested in the Federal Government. This is a
distinguishing feature, which in this pandemic has arguably been problematic
as I will expand below.
The jurisdiction to make laws to stem the pandemic is divided into pow-
ers to make legislation for the “Bund” (central government) and the single
“Länder” (single federal states). Nonetheless, it must be noted that legislation
passed by the single federal states, must also be in accordance with the gg.27
It is also worth noting that legislation passed by the single federal states, must
be in accordance with their own constitution in addition to the accordance
with the gg.
The question therefore arises whether the central government or the federal
states have jurisdiction over the legislation concerning the covid-19 epidemic.
The legislative competence for combating human and animal diseases
(among other medical connected parts) is regulated by Article 74 paragraph 1
24 Grundgesetz, see Gesetze im Internet, 2019. ‘Basic Law for the Federal Republic of Germany’.
Gesetze im Internet. 28 March. Retrieved 24 March 2021 https://www.gesetze-im-internet.
de/englisch_gg/.
25 Jens Kersten, Stephan Rixen, Der Verfassungsstaat in der Corona-Krise (Verlang C.H. Beck
oHG 2020) at 45.
26 Grundgesetz (n 24) Art. 13 paras. 1 and 7.
27 Grundgesetz (n 24) Art. 100.

62 von samsonow
Number 19 gg.28 This article regulates that the legislative competence lies
within the central government and federal states.
The central government has further regulated this before the pandemic
through primary legislation with the “Infektionsschutzgesetz” (hereinafter
‘IfSG’) (Infection Protection Act).29
The IfSG, through § 32 delegates powers to make statutory instruments to
the single federal states.30 This paragraph is concentrated on the delegation of
the legislative competence to only limit some fundamental rights (which are
guaranteed under the gg). For the purposes of this essay I will concentrate on
these. The legal basis for this delegation is found in Article 80 paragraph 1 gg:
‘The Federal Government, a Federal Minister or the Land governments may be
authorised by a law to issue statutory instruments.’31 Clearly, in this case, the
legislation that allows the power to use si is the IfSG, through §32. The legisla-
tive power to limit legislation is found in both in § 28 (for the Bund) and § 32
(for the single federal states) IfSG. § 28 grants the limitation of rights such as
to freedom of the person (guaranteed by Art. 2 para. 2 sentence 2 gg).32 The
limitations of these fundamental freedoms serve the purpose to protect the
fundamental right to life and physical integrity (guaranteed by Art. 2 para. 1
sentence 1 gg),33 of non-infected people.34 In both § 28 and § 32 of the IfSG,
the limitation of the fundamental rights may be implemented through ‘nec-
essary measures’. In addition to § 28 and § 32, on the 18th of October 2020,
through an amendment of the IfSG by the Bundestag (Parliament), § 28a was
added.35 This paragraph was specifically implemented and is only applicable
for the ongoing covid-19 epidemic. It lists 17 measures, such as the obligation
to wear a facemask.36
All of the obligations and prohibitions mentioned in § 28a were already
in force before the legislationhas been amended,37 nonetheless, this was an
extremely important measure by the central government. Criticism was rising
28 Grundgesetz (n 24) Art. 74 para. 1 nr. 19.

29 Infektionsschutzgesetz (IfSG) 2001.
30 IfSG (n 29) § 32.
31 Grundgesetz (n 24) Art. 80 para. 1.
32 Grundgesetz (n 24) Art. 2 para. 2.
33 Grundgesetz (n 24) Art. 2 para. 1 sentence 2.
34 Gesellschaft für Freiheitsrechte. 2021. Corona und Grundrechte: Fragen und
Antworten. gff Team, 11 February. Retrieved 4 April 2021 https://freiheitsrechte.org/
corona-und-grundrechte/#1.
35 IfSG (n 29) §28a.
36 IfSG (n 29) §28a S. 1 para. 2.
37 E.g., see Siebte Bayerische Infektionschutzmaßnahmenverordnung (7. BayIfSMV) 01 October
2020.

from experts,38 and from the ‘Länder’ administrative courts.39 Both courts and
experts heavily criticised the uncertainty of the wording ‘necessary measures’
in § 28 and § 32 of the IfSG. This “Generalklausel” (general clause) was deemed
as acceptable at the beginning of the pandemic due to the lack of information
about covid-19. However, as it became clear that the measures will be in force
for a prolonged period of time, more certainty was required about what spe-
cific measures and under what circumstance these may be implemented. The
requirement for certainty arises from the principle of “Parlamentsvorbehalt”.
This principle sets out that all decisions (in this case legislation) that are of
substantial weight for the community (in this case limitation of fundamental
rights) must be made by Parliament.40 Therefore, the general clause found in
§ 28 IfSG was deemed as unsatisfactory and too broad for such deep encroach-
ment in the fundamental rights. With § 28a IfSG the Bundestag ensured more
scrutiny with the process of infringement upon fundamental rights. But also,
as I have outlined above, the measures found in this paragraph are only appli-
cable during the covid-19 epidemic, therefore more limitation is guaranteed.
As I have outlined above the central government has delegated legislative
powers for stemming the epidemic to the single federal states.
In the following section I will briefly outline with the example of the Federal
State of Bavaria, how regulatios were implemented. Even though I will only
analyse one state, the same procedure of delegation of legislation to make si s
applies across all federal states. However, the legislations and restrictions itself
varied across Germany, with some federal states having very strict legislation
whilst some very lenient legislation. This is problematic as a lot of confusion
amongst the population was created upon which restrictions apply in which
federal state. But more importantly, there has been no equality of application
of law amongst citizens of one nation.
The “12. BayIfSMV” (12th Bavarian Infection Protection Regulation),41 sets
out legislation for the Bavarian State during the epidemic. This si regulates
for example what measures the counties and city districts need to implement
depending on the number of infections.42
38 See gff Team, Corona und Grundrechte: Fragen und Antworten (n 34).
39 E.g., the Bavarian Administrative Court in Decision of 29 October 2020 – 20 ne 20.2360,
para. 28–29.
40 Grundgesetz (n 24) Art. 19 para. 1 sentence 1. The origin of a distrust in the executive is
believed to have arisen from after the Nazi regime (see Martina Künnecke, Tradition and
Change in Adminitrative Law An Anglo-German Comparison (Springer Verlag 2007) at 250).
41 Zwfölfte Bayerische Infektionsschutzmaßnahmenverordnung (12. BayIfSMV) 5 March 2021.
42 12. BayIfSMV (n 41) Part 1 § 3.

64 von samsonow
Due to the difference in legislation amongst the federal states, the central
government introduced § 28b in the IfSG in April 2021.43 This was an impor-
tant step, as it ensured that most covid-19 related legislation is applied in
the same way across Germany. For example under part 1 § 2 a night curfew is
implemented when in a county or city district registers 100 or more cases per
100 000 inhabitants within 7 days.44 Before this legislation was implemented,
the night curfew was introduced in very few states such as Bavaria.
The executive gained an unnatural degree of powers to make secondary leg-
islation limiting fundamental rights. Over 400 si s have been passed in the UK,
with little to no Parliamentary scrutiny.45 In Germany, the parliaments, from
central government or federal state parliament, as I have analysed also played
a very minor role in legislation making process.
This created a disruption in the separation of powers. In the next part I will
analyse whether this resulted in a potential constitutional dilemma.
A Constitutional Dilemma?
One could argue that the covid-19 pandemic is not only a public health crisis,
but also a possible constitutional crisis. Lord Sumption has compared the cur-
rent political activity as ‘totalitarian’.46 A similar argument has been made by
Möllers who described the actions of the German government as ‘Schmittian’.47
This section will analyse these views by defining what a constitutional crisis is
and by assessing the degree to which extent existing constitutional structures
are under strain.
It is clear that ‘constitutional crisis’ does not have a clear definition. In this
case a constitutional crisis is an imbalance of the separation of powers caused
43 IfSG (n 29) § 28b.

44 IfSG (n 29) §28b part 1 § 2.
45 Ronan Cormacain, 2021. ‘The marginalisation of the House of Commons under Covid has
been shocking; a year on, Parliament’s role must urgently be restored’. Bingham Centre for the
Rule of Law, April 21. Retrieved 25 April 2021 https://binghamcentre.biicl.org/comments/111/
the-marginalisation-of-the-house-of-commons-under-covid-has-been-shocking-a-year-on-
parliaments-role-must-urgently-berestored?cookiesset=1&ts=1620635666.
46 Lord Jonathan Sumption, 2020. ‘Government by decree: Covid-19 and the Constitution’.
Speech at Cambridge Freshfields Annual Law Lecture, 27 October. Retrieved 10 February
2021 https://www.privatelaw.law.cam.ac.uk/events/CambridgeFreshfieldsLecture.
47 Christoph Möllers, 2020. ‘Parlamentarische Selbstentmächtigung im Zeichen des
Virus’. Verfassungsblog, 26 March. Retrieved 1 May 2021 https://verfassungsblog.de/
parlamentarische-selbstentmaechtigung-im-zeichen-des-virus/.

by the concentration of law-making within the executive. In addition to that a

failure of the system of checks and balances.
The extent, however, was not clear from the beginning of the pandemic in
early 2020. As cases of the new covid-19 disease started spreading and death
cases started to rise it was clear that quick and efficient decision making was
required on behalf of the government. I claim that only after it has become
clear that this new virus will accompany us for longer than expected, the actual
potential constitutional crisis began.
John Locke already recognised that events may occur in which it may do
harm to strictly adhere to laws. Locke justifies this:
‘The legislators can’t foresee and make legal provision for everything that
may in future be useful to the community, so the executor of the laws—
having the power in his hands—has by the common law of nature a right
to make use of it for the good of the society in many cases ·of difficulty·
where the existing law •doesn’t deal with the difficulty—until the legisla-
ture can conveniently be assembled to make laws that •do’.48
This idea has been then radicalised in the twentieth century by Carl Schmitt,
who attacked the sustainability of liberal constitutionalism. Schmitt claimed
that the sovereign is not limited by the law in a crisis. Furthermore it is the sov-
ereign that decides when a crisis occurs.49 Clearly such a view is undemocratic,
and I will not consider it further.
On the other hand, Machiavelli argued that ‘A republic will never be perfect
unless it has provided for everything with its laws and has established a rem-
edy for every accident and given a mode to govern it’.50
In my opinion most of modern constitutional law finds itself in the position
between Locke and Machiavelli. In many modern constitutions regulations are
found that regulate the disposition of powers during an emergency in the way
that is recommended by Machiavelli.51
48 John Locke, 1689. Second Treatise on Government. Early Modern Texts, 2017. https://www.
earlymoderntexts.com/assets/pdfs/locke1689a.pdf at Chapter 14 para. 159.
49 Carl Schmitt, (tr) George Schwab, Political Theology (University of Chicago Press edition
2005) at 5.
50 John P. Mccormick, ‘Addressing the Political Exception: Machiavelli’s ‘Accidents’ and the
Mixed Regime’ [1993] 87 no.4 The American Political Science Review 888, at 897.
51 Ferejohn and Pasquino coin this as the constitutional model of emergencies. John Ferejohn
and Pasquale Pasquino, ‘The Law of the Exception: A Typology of Emergency Powers’ (2004)
2 ICON 210, at 217.

66 von samsonow
A good example of this is the German Constitution as outlined above with

Article 74 paragraph 1 Number 19 gg. The gg ex ante recognises that a health
crisis may occur and grants powers to make legislation to both the Bund
and the Länder. However, this does not exhaustively fit the requirements of
Machiavelli as it simply grants powers, but does not specify to which branch,
meaning legislative, executive or judiciary these go to. Arguably though this is
later satisfied with the IfSG, but it must be noted that this legislation is not of
constitutional nature. At this point constitutional law finds itself where Locke
predicted it to be. As drafters of a constitution cannot predict the future.
In England and Wales the situation is slightly different. For the purposes of
this essay I will not enter the debate of whether the UK has a constitution or
not. I will simply base my arguments that it does, however recognising that it
may not be as strong as e.g., the gg. This is because in order to modify the gg,
a 2/3 majority is needed in the Bundestag and Bundesrat.52 Whereas in the UK
every legislation, at least in theory, can be changed by a simple majority in both
Houses of Parliament. However, the political nature of the British constitution
makes changes to some Acts of Parliament politically difficult. The Parliament
Acts 1911 and 1949 are an example of legislation that can be described as con-
stitutional.53 This is because these give structure to the whole political system,
therefore any amendment, unless made for very good reason would not get a
majority in Parliament. Furthermore, the judiciary has also made clear that it
will uphold Acts of Parliament if it recognises these as constitutional, as in the
case of Thoburn.54
As I have outlined above English legislation is also seemingly prepared for
an emergency such as a pandemic. Two acts were passed through both Houses
of Parliament, the Public Health (Control of Disease) Act 1984 and the Civil
Contingencies Act 2004 which grants powers to the executive to make legisla-
tion that helps stem the epidemy. Nonetheless, English constitutional law does
not meet the requirements of Machiavelli’s theory as the passed Acts are nei-
ther part of a Constitution nor of constitutional nature. My claim is not based
upon the fact that Machiavelli specifically mentioned that ex ante laws must
be enshrined in a constitution. But if ex ante legislation is present that can be
amended or quashed by new legislation it still does not offer any guarantee.
In fact, this is what happened in the UK with the circumvention of the Civil
Contingencies Act 2004 and the introduction of the Coronavirus Act 2020.
52 Grundgesetz (n 24) Art. 79.

53 Parliament Act 1911, Parliament Act 1949.
54 Thoburn v Sunderland City Council [2002] ewhc 195 (Admin).

Arguably there are few constitutional controls that the UK offers in compar-
ison to Germany, one is the Human Rights Act 1998.55 The only protection it
offers though, is for human rights and not against a government that is mainly
controlled by the executive.
The main protection that English constitutional Law may have is
Parliamentary Sovereignty. Whether the principle of Parliamentary Sovereignty
is still applicable today is an ongoing academic discussion, which for the pur-
poses of this essay I will not follow. It is clear that the principle as set out by
Dicey is outdated. Nonetheless, in the recent case Miller ii,56 the judiciary made
clear that Parliamentary Sovereignty is a foundation principle of the constitu-
tion.57 More importantly the Supreme Court made clear that any prerogative
powers of the executive cannot be unlimited as that would be in conflict with
Parliamentary Sovereignty.58
My conclusion is that neither country’s legislation is perfectly prepared for
a pandemic, which inevitably leads to a take-over of powers by the executive.
Petrov claims, and I agree, that it is logical step. This is because the executive
has:
‘… hierarchical structure with a clear division of ranks and responsibil-

ities, access to expertise, and qualities that allow for swift and decisive
action for protecting the nation.’59
Petrov, however, also warns that executive’s emergency powers may trigger
situations of risk. In the panic theory it is argued that the executive adopts
measures which excessively restrict liberty as a result of panic. In the dem-
ocratic failure theory emergency measures are designed in ways that may
benefit the majority but come as an expense to minorities. Finally the ratchet
theory,60 in which a government increases security and diminishes liberty, but
after the emergency fails to reinstate the liberty that was granted before the
emergency.61
55 Human Rights Act 1998.

56 R. (on the application of Miller) v Prime Minister [2019] uksc 41.
57 Miller ii (n 56) at 41.
58 Miller ii (n 56) at 44.
59 Jan Petrov, ‘The covid-19 emergency in the age of executive aggrandizement: what role for
legislative and judicial checks?’ (2020) 8 The Theory and Practice of Legislation 71 at 75.
60 Eric A. Posner, Adrian Vermeule, Terror in Balance: Security, Liberty, and the Courts (oup
2007) pages 12–14.
61 Ibid. 60.

68 von samsonow
There is one obvious side of the problem of lack of involvement by parlia-

ments both in Germany and England-Wales that needs to be mentioned and
that actually hinders the normal democratic process. Namely the fact that
gatherings help spread the virus, therefore houses of Parliament are simply too
dangerous. As a reporter points out about the House of Commons:
‘few places are less suited to social distancing than a nineteenth centu-
ry, wood-paneled debating chamber where lawmakers routinely squeeze
onto overcrowded benches to secure a seat’.62
Nonetheless, I do not wish to make the argument that the virus by hindering
gatherings, makes it impossible for mp s to discuss and make laws. Since the
technology that is available today would certainly solve the issue with virtual
hearings.63 Furthermore virtual hearings would also solve the issue of spread-
ing the virus by travelling across the country.
It must be noted that this health crisis and the possibly resulting constitu-
tional crisis is ongoing for more than a year. It is possible to imagine that the
covid-19 pandemic will continue for at least another year or even become
part of our ‘normality’. However, we cannot afford to risk democracy and let
the executive stay as an unusually strong branch of legislative power to become
our ‘constitutional normality’.
The current state of strong executive powers also may become counterpro-
ductive in the long run for the stemming of the epidemic. This is because with
time compliance on behalf of the population fades away.64
Petrov notes that in a democratic state absolute strict laws are not permis-
sible anyway. Meaning, the Government must find a way in which compli-
ance is more likely. The author argues that therefore, we must have a stronger
involvement of the parliamentary and the judiciary, still recognising that this
can only happen in a limited manner and flexible with the happenings of the
ongoing epidemic. Petrov suggests that voluntary compliance may be achieved
62 Stephen Castle, 2020. ‘For the Foreseeable Future, U.K. Parliament May Meet in
Cyberspace’. The New York Times 15 April (Online).
63 House of Commons, 2020. ‘House of Commons takes historic first step towards virtual
proceedings.’ UK Parliament 16 April 2020. Retrieved 20 April 2021 https://www.parliament.
uk/business/news/2020/april1/hybrid-house-of-commons/; Robert Roßmann, 2020. ‘Wie
der Bundestag virtuell tagen könnte’. Süddeutsche Zeitung 13 April (Online).
64 Matthew Flinders, ‘Democracy and the Politics of Coronavirus: Trust, Blame and
Understanding’ (2020) University of Sheffield Working Paper 1, pages 4–5

with higher feasibility,65 and greater legitimacy,66 of emergency measures.

Furthermore support for the legitimacy of the emergency governance is
boosted with the involvement of one’s politically accountable representatives
in the legislature decision-making, and by offering a realistic chance of having
the emergency measures reviewed by an independent umpire.67
From my analysis above it is difficult to argue that a constitutional crisis is
ongoing. However it is arguable that the system of separation of powers has
been weakened, with a very limited role of parliaments. The main reason why I
would not argue that there is a constitutional crisis is that, as I will analyse and
outline below the judiciary still played an active role. Nonetheless, this is not
completely satisfactory, as parliaments still play a limited role in this constella-
tion. Therefore, a stronger separation of powers is still needed.
In my opinion, the most important argument in favour of a stronger separa-
tion of powers in an ongoing pandemic, is the protection of human rights. This
protection has the best guarantee in a functioning democracy.
The best solution that modern states and that the governments of Germany
and England-Wales have to ensure democracy is a system of checks and
balances.68
During this pandemic this system though must face a dilemma. If a govern-
ment applies it in a strict way, quick actions needed by the executive may be
hindered. On the other hand, if carte blanche is offered to the executive it may
result in an abuse of power, and in uncontrolled unconstitutional actions.
As outlined above in Germany, the Bundestag introduced §28a IfSG as a
response from critics, which ‘appeared to be a step in the right direction because
finally Parliament legislated a catalogue of measures’ as Mangold points out.69
In my opinion Andrea Kiessling is correct by criticising that §28a still does not
65 See e.g.: Lon Fuller, The Morality of Law (Yale University Press, 1969) at 155; Jeremy Waldron,
‘Why Law – Efficacy, Freedom, or Fidelity?’ (1994) 13 Law and Philosophy 259, at 277.
66 Tom Tyler, Why People Obey the Law (Princeton University Press 2006); for covid-19 context:
Yuval Noah Harari, 2020. ‘The World after Coronavirus’. Financial Times 20 March (Online).
67 Petrov, ‘The covid-19 emergency in the age of executive aggrandizement: what role for
legislative and judicial checks?’ (n 59) at 77.
68 On the elements of separation of powers see Jeremy Waldron, ‘Separation of Powers in
Thought and Practice’ (2013) 54 Boston College Law Review 433, at 438.
69 Anna Katharina Mangold, 2021. ‘Germany and covid-19: A Most Eventful Year’
Verfassungsblog 2021, April 7. Retrieved 8 April 2021 https://verfassungsblog.de/
germany-and-covid-19-a-most-eventful-year/.

70 von samsonow
define properly what measures can be ordered under what conditions and that
it simply legitimises the actions of the executive previously taken.70
The Bundestag also introduced §28b IfSG,71 which aims at ensuring a level
of equal legislation that limits human rights in the pandemic across Germany.
In my opinion the importance of the introduction of this legislation can be
interpreted in two ways. On one hand, it is arguable that it was a result of fail-
ure of a federal system, because it does not ensure equal enjoyment across the
country. On the other hand, it is arguable that this was a result of failure of the
executive on a federal state level. In my opinion, the need for §28b IfSG should
be interpreted in the latter way. This is because the executive in the federal
state decided to legislate in very different ways across the country, instead of
focusing on the interests of Germany as a whole. In my eyes this is further
proof that the power concentration within the executive is not the best solu-
tion for a health crisis such as this pandemic.
The in my opinion most efficient tool that Germany used so far to control
the executive, is the judiciary. As I will outline in the next part, a high num-
ber of complaints have reached the Administrative Courts regarding the pro-
portionality of measures introduced by the Länder health ministers. Many
complaints have been successful and led to the quashing of the measure in
question. The judiciary is a very important branch in the separation of powers
as a control mechanism, especially during the ongoing epidemic. Nonetheless,
it must be remembered that it should be a measure of last resort, and during
this epidemic it was indeed the only measure available for citizens to protect
themselves from unconstitutional statutory instruments.
In England and Wales the judiciary, as I will further expand below has also
played a very important role in holding the government to account. It must
be noted that otherwise England-Wales was left without weapons against
the executive, as the 1984 Act has been passed by the very Parliament which
is supposed to hold the executive accountable. However, the Act grants the
powers to the executive without any accountability. Again, it can be seen as in
Germany that the judiciary is perhaps an effective tool left available to ensure
a system of checks and balances.
70 Andrea Kiessling, 2020. ‘Stellungnahme als geladene Einzelsachverständige für

die öffentliche Anhörung im Gesundheitsausschuss des Deutschen Bundestages’
Ruhr Universität Bochum 2020, November 12. https://www.bundestag.de/resource/
blob/805488/949a9f10230bb6b7a445ea5d2cdad74c/19_14_0246-7-_ESV-Kiessling-3-
BevSchG-data.pdf.
71 IfSG (n 29) § 28b.

Role of the Judiciary During the covid-19 Pandemic in England-

Wales and Germany
In this part I will firstly briefly outline the process of judicial review in Germany
and England-Wales, concentrating on human rights. Later I will outline and
comparatively analyse judicial review during this pandemic, of legislation
passed by the governments in relation to covid-19.
As I have outlined above judicial review is an important tool for the judi-
ciary to hold the executive accountable. This practice ensures a separation
of powers, and a system of checks and balances. Parliamentary Sovereignty
requires the judiciary to pass judgment upon the lawfulness of administra-
tive decisions if Parliament directs it to do so, or not to make judgment if
Parliament requires it.
The rule of law is the most important principle behind judicial review which
requires:
‘that public authorities adhere to consistent, open, prospective, non-

arbitrary standards, and it also requires decision-making processes that
distinguish government action from the mere arbitrary whim of the peo-
ple in power.’72
There are three main grounds of judicial review: ‘illegality’, ‘irrationality’ and
‘procedural impropriety’.73
Under ‘illegality’ the decision is considered to be illegal, as the body mak-
ing the decision has acted ultra vires, or the powers have been exercised
incorrectly.74
Under ‘irrationality’, also referred to as ‘Wednesbury unreasonable’ a deci-
sion is considered so to be unreasonable that no reasonable public body would
make such decision.75
Under ‘procedural impropriety’ the decision maker has not followed
the required procedure, or where needed has not provided reasons for its
decision.76
72 Timothy Endicott, Administrative Law (4th Edn, oup, 2018), at 54.

73 Council of Civil Service Unions and Others Appellants v Minister for the Civil Service Respondent
[1985] A.C. 374, Lord Diplock at 22.
74 Ibid. 73.
75 Ibid. 73.
76 Ibid. 73.

72 von samsonow
It is important to note that judicial review ‘only’ allows the judiciary to quash
secondary legislation. In regard to primary legislation due to Parliamentary
Sovereignty, only a declaration of incompatibility can be made under the
Human Rights Act 1998.77 Nonetheless, as outlined above most legislation
passed, that conflicts with human rights and is connected to the covid-19 epi-
demic is secondary legislation.
At this moment it is difficult to gather data about the number of applica-
tions for judicial review in regard to secondary legislation passed by the exec-
utive in regard to the epidemic. Therefore it is also difficult to make empirical
conclusions about the role of the judiciary. Nonetheless, the case of Dolan v
Secretary of State for Health and Social Care,78 does help with the interpretation
of the approach of the courts regarding covid-19 related legislation. This case
concerned an appeal against a previous decision not to grant judicial review.
The appellant challenged the regulation made in relation to covid-19 on three
main grounds. The first ground was that the Government did not have powers
to make legislation under the Public Health (Control of Disease) Act 1984 as
amended by the Social Care Act 2008. The second ground was that the regula-
tions were unlawful under ordinary public law principles. Finally it was argued
that regulations violated a number of rights guaranteed by the Human Rights
Act 1998.79 The Court of Appeal refused permission to appeal against the pre-
vious decision in respect of the second (public law principles argument) and
third ground (hra argument). It did grant give permission to bring a claim for
judicial review as regards to ground 1 (ultra vires argument). Which however
was dismissed as the Court ruled that the Secretary of State indeed had powers
to make legislation.80
The crucial part of the judgement, which I deem as controversial, is the
reasoning behind the dismission ground one and two. The Court argued that
since the legislation that was being challenged in Court has been superseded
by new legislation, it would be an academic matter whether public law prin-
ciples and human rights had been infringed.81 Furthermore the Court justi-
fied its decisions by criticising what it called ‘rolling judicial review’, therefore
avoiding continued judgements about legislation that has been amended
already. Michael Gardner heavily criticised this reasoning, arguing that if leg-
islation is constantly amended and judicial review can only be applied to the
77 Human Rights Act (n 55) s. 4.

78 Dolan v Secretary of State for Health and Social Care [2020] ewca Civ 1605.
79 Dolan V Secretary of State (n 81) at 1.

legislation in force, there would be no way of challenging the Government’s

actions. Gardner further states that if the Court of Appeal is right with its deci-
sions, then the executive would have carte blanche to prevent any challenge
by simply implementing new legislation. This approach results in potential
injustice.82 In my opinion Gardner is correct in criticising the Court of Appeal
for two main reasons. Firstly, the legislation that has been implemented dur-
ing this epidemic has no precedence, both in its form but also in its infringe-
ment in human rights. It is wrong to categorise a debate about its legality as
academic, simply because if the result of an academic discussion would be
that it was illegal or at least problematic, there would be no remedy or actual
real public discussion about the actions of the executive. Secondly, and more
importantly, as I have outlined above Parliament has not played an active role
in the making of legislation and did not have the possibility to review the made
legislation properly. Since we cannot trust that the executive will always make
the right decisions, we need the judiciary as a control mechanism that holds
the executive accountable. The main argument that speaks in favour of the
decision of the Court of Appeal which goes in line with the ‘rolling judicial
review’ argument is that it would be problematic to review all covid-19 legis-
lation passed due to the big amount of si, but also because remedies may be
limited. It is important to note that judicial review in England-Wales is purely
discretionary in providing remedies, there is no right to judicial review. With
regard to reviewing covid-19 restrictions, judges have shown deference to
executive powers.83
Nonetheless, in the ongoing pandemic a strong judiciary with a constitu-
tionally protected right to judicial review, that has the constitutional right
to quash secondary legislation, to declare primary legislation incompatible,
even if it has been amended would be helpful for any future legislation. This
is because it would put pressure upon the executive to pass legislation that is
more in conformity with human rights and is not ultra vires.
This pressure from the judiciary has taken place in Germany, where courts
have been more inclined in quashing covid-19 regulations as I will outline
now.
In Germany any administrative court is bound by the civil liberties and
human rights protected by Arts. 1–19 gg.84 The right to judicial review is also
82 Michael Gardner, 2020. ‘jr is the only route for challenging Covid restrictions’ Law Society
Gazette 15 December (Online).
83 Rupert Jones, 2020. ‘Pub and restaurant bosses lose legal fight over England Covid closures’.
The Guardian 3 May (Online).
84 Grundgesetz (n 24) Art. 1–19.

74 von samsonow
enshrined in the gg under Article 19 paragraph 4,85 if there is any violation of the
just-mentioned rights. When considering judicial review, courts will apply the
proportionality test, which is a similar approach as in England-Wales. This test
is not codified and arises from the rule of law principle (‘Rechtsstaatprinzip’).
It is important to note that the ‘rule of law’ principle is slightly different from
the ‘Rechtsstaatprinzip’. Nonetheless this has limited relevance in this discus-
sion, and I will not outline this further.86
Under the proportionality test, the courts ask for a legitimate aim (1), whether
the measure is suitable to reach this aim (2), whether other less intrusive meas-
ures could be chosen (3), and finally whether the restrictions of fundamental
rights are adequate to the pursued aim (4).87 Even though there is similarity in the
understanding of the rule of law and the proportionality test, the court system
is very different. For the purpose of this essay I will only concentrate upon con-
stitutional and administrative courts. The ‘Bundesverfassungsgericht’ (Federal
Constitutional Court ‘fcc’) deals with matters regarding the protection of fun-
damental rights enshrined in the gg in relation to legislation made by central
government; furthermore it is the last instance court. The fcc has played a
limited role during this pandemic as I will outline below. A very active role
has been played by the ‘Verwaltungsgerichtshof’ or ‘Oberverwaltungsgericht’
(Administrative High Court), which rule upon acts of the executive of
the single federal states. Furthermore the ‘Landesverfassungsgericht’ or
‘Verfassungsgerichtshof’ (Constitutional Courts within the federal states) that
deal with infringements with fundamental rights (enshrined in the constitu-
tion of the federal states) caused by primary legislation, have played a limited
role. Most covid-19 related legislation that was implemented was secondary,
therefore most cases were heard in the Administrative High Courts.
Clearly the German judicial system is different as it does divide the separate
areas of law in clear separate courts. Furthermore, through federalism and the
resulting higher number of courts, arguably more claims have been brought
to court in relation to covid-19 legislation. It is difficult to gather data, the
German newspaper Welt reports more than 10 000 cases until March 2021.88
85 Grundgesetz (n 24) Art. 19 (4).

86 See e.g., Stephan Kirste, ‘Die Rule of Law in Der Deutschen Rechtsstaatstheorie des 19.
Jahrhunderts’ (2013) 21 Jahrbuch Für Recht Und Ethik / Annual Review of Law and Ethics at23.
87 Markus Heintzen, Heike Krieger, 2019. ‘Gliederung: Die Verhältnismäßigkeitsprüfung in
der Fallbearbeitung’. Freie Universität Berlin 2019. Retrieved 5 May 2021 https://www.
jura.fu-berlin.de/studium/lehrplan/projekte/hauptstadtfaelle/tipps/Uebersicht_-Die-
Verhaeltnismaessigkeitspruefung-in-der-Fallbearbeitung/index.html.
88 Welt, 2020. ‘2020 mehr als 10.000 Eilverfahren und Klagen gegen Corona-Auflagen’. Welt 8
March (Online).

Furthermore, the judiciary in Germany is more powerful, as constitutional

courts have the power to quash primary legislation if it is in conflict with the
constitution.
As Mangold explains, when the courts decide about interim relief, they do
not review the substance of the case, but rather decide upon the probability of
which decisions will be more detrimental if proven wrong.89
As I have outlined above §28 (later §28a and §28b) IfSG was criticised for
being very uncertain. But even though most legislation was based upon this
legally uncertain legislation, courts have been hesitant to repeal any regula-
tions. In my opinion this lies in the fact that the courts were concentrating on
protecting the right to life, rather than quashing regulations and create even
more legal uncertainty.
Nonetheless, the Courts have quashed some legislation. For example in April
2020 the fcc did abolish prohibitions on the freedom of assembly.90 Since
most legislation was on a federal state level, and secondary, most cases were
heard in the Administrative High Courts. For example in November 2020, the
Bavarian Administrative High Court ruled that gyms are allowed to be open.91
At this moment it is difficult to compare the actual role of the judiciary in
Germany and England-Wales as more data needs to be gathered. Furthermore,
the difference between a federal and non-federal rises again since in Germany
it would be possible to claim for judicial review on sixteen different and inde-
pendent covid-19 secondary legislations.
Mangold writes that her impressions are that during the epidemic, courts
concentrate upon procedural and formal mistakes made by the administration
when implementing covid-19 related legislation. More specifically the ques-
tion whether the measures are sufficiently clear.92 I disagree, in my opinion
courts have examined the legislation itself and whether it was proportionate
and in accordance with fundamental rights. This is because the courts did not
strike down whole secondary legislations, but only parts of it.
In my view the judiciary in England-Wales and Germany have taken a simi-
lar path in ‘tolerating’ the uncertainty of legislation that was passed before the
pandemic, that was supposed to be a guideline. The main reason for this, in
my opinion, is that the judiciary is keener on tolerating more infringement in
89 Mangold, ‘Germany and covid-19: A Most Eventful Year’ (n 69).

90 Federal Constitutional Court Decision of the 1st Chamber of the First Senate of April 15,
2020- 1 BvR 828/20 -, at 1–19.
91 Thomas Eldersch, 2020. ‘Corona: Gericht kippt überraschend Lockdown-Regel in Bayern -
Söder-Regierung zieht jedoch Verschärfung vor’. Merkur 14 November (Online).
92 Mangold, ‘Germany and covid-19: A Most Eventful Year’ (n 69).

76 von samsonow
fundamental rights, if the ultimate goal is to save lives. Nonetheless, with more
oversight and pressure, better rules could have been implemented, which
would have been more beneficial.
From the comparison, it appears to me that the judiciary has played a more
active role in Germany by reviewing singular pieces of secondary legislation,
and in a small number but still significant, did decide against the executive.
It is interesting to note that both in England-Wales and Germany, courts
have been more inclined to drop fines against citizens that did not respect
covid-19 regulations, instead of stepping in beforehand. In February 2021, the
reported that almost a third of prosecutions under covid-19 regulations were
dropped.93 In Germany, a judge told the newspaper focus to challenge fines,
since often these have been handed out without legal ground.94 This is a wel-
comed reaction by the courts in both countries, as citizens are protected at
least in the last instance.
Nonetheless, it would be more efficient and beneficial if proper legislation
would have been passed in the first place, which would have been possible
through a more democratic process as I have outlined above. My conclusion
about the judiciary is nonetheless a positive one. Citizens and businesses have
had the chance to claim for judicial review against covid-19 legislation. And
even if this was not successful, the courts have at least reacted when injustice
was done. Therefore, in my view the system of checks and balances has taken
place to an extent, even if too late.
Conclusion
In my opinion neither in England-Wales nor in Germany, the governments

were prepared for this public health crisis. Furthermore, the route that both
countries have taken in my opinion has not been beneficial for the pandemic
and for our principles of democracy.
In England-Wales the 2004 Act, has been bypassed with the Coronavirus
2020 Act. The latter act, even though it has been passed by Parliament, is in
itself an Act of the executive. This is because little to no time was granted to
mp s to review or debate the legislation. As a result there has been an unprec-
edented concentration of powers within the executive, which in the long run
93 Lizzie Dearden, 2021. ‘Almost a third of prosecutions under coronavirus laws dropped,
review shows’. Independent 6 February (Online).
94 Göran Schattauer, 2021. ‘Appell zum Widerstand: Richter ruft Bürger auf, sich gegen Corona-
Bußgelder zu wehren’. Focus 7 March (Online).

has not been beneficial for stemming the pandemic. But more importantly the
route that the Government has taken, is contrary to the well-founded system of
separation of powers. The executive did not only ‘bypass’ Parliament with the
2020 Act, but also with the 400 si s passed throughout the following year of the
epidemic, as I have mentioned above.95 Without the scrutiny of Parliament,
the only branch of power left was the judiciary. On one hand the judiciary
played an important role as, as it is required in a democratic state, citizens had
the possibility to call the courts and request a check on the legality or propor-
tionality of the covid-19 related legislation passed by the executive. However,
the result was not satisfactory as the Courts considered the matter to be ‘aca-
demic’ and were not inclined in making judgements in public health matters.
Only when injustice was already done, it intervened with the quashing of fines.
Furthermore, Parliamentary Sovereignty is arguably the biggest fundament for
the British constitutional constellation and needs more protection.
In Germany, the legislation that was passed by the Bundestag to regulate
public health emergencies was also not satisfactory. This is because it also con-
centrated the power to make si s within the executive without the possibility
of scrutiny by the Bundestag or the parliaments of the single federal states.
Courts in Germany however have seemingly played a more active role, by
actually reviewing more cases and actually quashing some covid-19 legisla-
tion. Furthermore, in Germany the Bundestag with § 28a and § 28b IfSG has
attempted to concentrate the regulation of covid-19 legislations back to the
legislative. Nonetheless, Germany should not put all hopes in the protection by
the gg, but concentrate on more parliamentarism.
From my comparative analysis I conclude that the concentration of powers
within the executive in a public health crisis is only helpful for the beginning
of the crisis. Afterwards more involvement of the legislative is needed to hold
the executive accountable for the passed si s, but more importantly to uphold
the principles of democracy. In this pandemic democracy has not died, but it
has been put at risk. Furthermore, it is in my opinion wrong to use the judici-
ary as a primary branch to hold the executive accountable, as that should be a
measure of last resort.
There are some academic questions which further research might want to
address, that I am not able to address due to the word limit given. Generally
more comparative research is required to analyse whether a federal govern-
ment form is more suited in a pandemic. Further, an in-depth analysis of
95 Ronan Cormacain, ‘The marginalisation of the House of Commons under Covid has been
shocking; a year on, Parliament’s role must urgently be restored’ (n 45).

78 von samsonow
whether a written constitution also ensures more protection of fundamental

rights in a pandemic.
The impact of membership in the European Union, is also an aspect that
requires further research, by analysing what measures the EU has taken to
stem the pandemic, and if more measures would have been required. This
would need a further comparative analysis with the UK, to analyse the impact
of it not being part of the EU anymore.
Concentrating on the UK, further research is needed on the actual impact
upon Parliamentary Sovereignty, and whether the system of devolution has
been more helpful or not.
A comparative law approach is extremely helpful with these academic ques-
tions as it allows to find out how other different legal systems have addressed
the same issues. This is fruitful because it allows legal academics to find out
what measures have worked in the long run, and what legal systems can learn
from each other.
In two main areas the legal systems of England-Wales and Germany can
learn from each other.
First, a codified constitution in England-Wales would have guaranteed a
stronger control of the executive for si s that are unproportionate or ultra vires.
This comparison has shown that a right to judicial review can place more pow-
ers into the hands of the judges and instil confidence in those who seek access
to the courts.
Secondly, in my opinion Germany should not have pursued the strict appli-
cation of the federal system, as it resulted in an unequal application of laws in
the country. One must not forget though that both constitutional legal systems
are deeply steeped in history and tradition. And that change does not come
without a price. As Macchiaveli noted: ‘One change always leaves the way open
for the establishment of others’.96
96 Niccolò Macchiavelli (1469–1527).


Ejcl Article p56 - 4

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ejcl Article p56 - 4

Uploaded by

Copyright:

Available Formats

European Journal of Comparative Law and

Governance 9 (2022) 56–78

Executive Powers During the covid-19 Epidemic

Wladimir von Samsonow | ORCID: 0000-0002-8736-0847

covid-19 – coronavirus – executive – constitutional comparative law

© koninklijke brill nv, leiden, 2022 | doi:10.1163/22134514-bja10028

made and passed by the executive, not undergoing lengthy parliamentary

European Journal of Comparative Law andDownloaded

The aim of this dissertation is not to undermine the importance of the

In order to assess whether a potential disruption of the democratic process

Legal Position in England and Wales

Parliament has foreseen the possibility of a public health emergency by pass-

4 Public Health (Control of Disease) Act 1984 (as amended).

European Journal of Comparative Law and Governance 9 (2022) 56–78

and training provision.9 Obligation to be tested for coronavirus empowered by

9 Coronavirus Act (n 6) s. 37 – 38 and Schedule 16.

European Journal of Comparative Law andDownloaded

The Government has justified the implementation of the Coronavirus Act

Legal Position in Germany

16 hc Deb 23 March 2020, vol 674, col 132.

European Journal of Comparative Law and Governance 9 (2022) 56–78

European Journal of Comparative Law andDownloaded

28 Grundgesetz (n 24) Art. 74 para. 1 nr. 19.

European Journal of Comparative Law and Governance 9 (2022) 56–78

European Journal of Comparative Law andDownloaded

43 IfSG (n 29) § 28b.

European Journal of Comparative Law and Governance 9 (2022) 56–78

by the concentration of law-making within the executive. In addition to that a

European Journal of Comparative Law andDownloaded

A good example of this is the German Constitution as outlined above with

52 Grundgesetz (n 24) Art. 79.

European Journal of Comparative Law and Governance 9 (2022) 56–78

‘… hierarchical structure with a clear division of ranks and responsibil-

55 Human Rights Act 1998.

European Journal of Comparative Law andDownloaded

There is one obvious side of the problem of lack of involvement by parlia-

European Journal of Comparative Law and Governance 9 (2022) 56–78

with higher feasibility,65 and greater legitimacy,66 of emergency measures.

European Journal of Comparative Law andDownloaded

70 Andrea Kiessling, 2020. ‘Stellungnahme als geladene Einzelsachverständige für

European Journal of Comparative Law and Governance 9 (2022) 56–78

Role of the Judiciary During the covid-19 Pandemic in England-

‘that public authorities adhere to consistent, open, prospective, non-

72 Timothy Endicott, Administrative Law (4th Edn, oup, 2018), at 54.

European Journal of Comparative Law andDownloaded

77 Human Rights Act (n 55) s. 4.

European Journal of Comparative Law and Governance 9 (2022) 56–78

legislation in force, there would be no way of challenging the Government’s

European Journal of Comparative Law andDownloaded

85 Grundgesetz (n 24) Art. 19 (4).

European Journal of Comparative Law and Governance 9 (2022) 56–78

Furthermore, the judiciary in Germany is more powerful, as constitutional

89 Mangold, ‘Germany and covid-19: A Most Eventful Year’ (n 69).

European Journal of Comparative Law andDownloaded

In my opinion neither in England-Wales nor in Germany, the governments

European Journal of Comparative Law and Governance 9 (2022) 56–78

European Journal of Comparative Law andDownloaded

whether a written constitution also ensures more protection of fundamental

96 Niccolò Macchiavelli (1469–1527).

European Journal of Comparative Law and Governance 9 (2022) 56–78

You might also like