By Kaisa-Maria Kimmel and Rosa Maria Ballardini
In response to the COVID-19 pandemic, Finland began enacting national containment measures on March 16, 2020, after declaring a national state of emergency.
These containment measures are necessary for protecting the right to life and health of many, but entail restrictions on some fundamental rights of people residing in Finland. It is therefore important to take a critical look at these measures from a legal and social perspective. Here, we discuss whether and to what extent such legislative measures have been backed up by existing laws, which regulatory vehicles have been used, as well as public responses to the measures in Finland.
Containment measures
The Finnish government has issued a number of administrative guidelines, decrees, and legislative bills, accompanied by a host of recommendations for physical distancing, remote work, and increased hygiene.
In the first set of national restrictions, gatherings of over 10 people and visits to hospitals and nursing homes were prohibited, educational institutions and public spaces such as museums and libraries were closed, and individuals returning from abroad were ordered to self-quarantine for 14 days upon arrival in Finland. Schools received recommendations to conduct teaching remotely until May 14, 2020.
Soon after, Parliament activated the government competencies provided for in the Emergency Powers Act (EPA, 1552/2011). Finland closed its borders to most travel except for Finnish residents returning from abroad. Decrees issued under emergency powers partially exempted municipalities from obligations regarding daycare, primary and secondary education, social care and non-emergency healthcare.
A prohibition on non-essential travel to and from the Uusimaa region surrounding Helsinki was enacted from March 27 through April 19, 2020 to slow the spread of the epidemic to the rest of Finland. Restaurants were ordered to close and have been allowed to sell only take away meals from April 4 through the end of May 2020 (HE 25/2020 vp).
In Finland, COVID-19 prevention and mitigation measures have been instituted through three key regulatory mechanisms.
First, the Communicable Diseases Act (1227/2016) provides for restrictions to fundamental rights for preventing the spread of communicable diseases under normal conditions. The Act authorizes municipalities and Regional State Administrative Agencies to order specific restrictions at the local level. This regulatory vehicle was used in the first set of restrictions under government guidance.
Second, Article 23 of the Finnish Constitution (1731/1999) works as an emergency clause regarding derogations to fundamental rights in the event of an armed attack or other state of emergency. For example, restaurant closures have been enacted via legislative amendments pursuant to Article 23.
Third, the Emergency Powers Act works in parallel with Article 23, and provides specific government competencies which can be activated during a state of emergency. Under the COVID-19 response, the bulk of restrictions have been issued as Decrees pursuant to this Act.
The legislative process relating to EPA starts with the government declaring a state of emergency together with the President of the Republic. Subsequently, the government issues a Decree to trigger the potential application of predefined measures under EPA, reviewed ex–ante by the Parliament to confirm its entry into force. Then, the government issues Decrees based on authorities delegated under EPA. In an ex-post review, the Parliament can repeal these Decrees or specific provisions. Finally, the Decrees are applied by public authorities.
There has been no judicial review of these restrictions to fundamental rights. However, the Constitutional Law Committee (CLC) of the Parliament has carried out careful review of the constitutional compatibility of special legislation and government Decrees. The CLC has been diligent in highlighting shortcomings in the government’s compliance with the EPA and the justification of subsequent Decrees. Government Decrees are additionally reviewed by the Justice Chancellor before they are issued.
Finnish constitutional law scholars have participated in public discussion as well as CLC hearings concerning the legislative measures for COVID-19 prevention. They have drawn attention to the need to justify the necessity of restrictions, choose appropriate regulatory vehicles, and account for discrepancies in following the legislative process under the Emergency Powers Act. There have also been discussions about whether these measures constitute unilateral derogations from human rights treaty obligations requiring a notification to the UN or the Council of Europe. However, there is a consensus that the principles of democratic decision-making have been respected in the handling of the pandemic, as parliamentary oversight functions well, and the Parliament still wields the highest legislative power in Finland.
Overall, the public has supported the adopted prevention measures. However, some have expressed dissatisfaction towards restrictions preventing people from getting to vacation cottages, depriving some at-risk individuals from an opportunity to self-isolate outside of the capital area.
Health care professionals and public health experts have been active in the debate on which measures should be prioritized and whether current restrictions have been sufficient. While physicians have shown support toward the measures, many have also expressed concerns over their long-term impact on primary health care and the treatment of chronic illnesses.
School closures have been discussed widely, and social workers have raised the alarm concerning the most vulnerable children confined at home. Pediatricians have called for schools to open as soon as possible to ensure each child’s right to education.
Kaisa-Maria Kimmel is a doctoral candidate in law at the University of Lapland.
Rosa Maria Ballardini, is an Associate Professor and Vice Dean (research) at the University of Lapland, Faculty of Law.
