On March 12, 2020 the Danish Prime Minister informed the nation in a televised statement that she was effectively shutting down the country in response to COVID-19. She urged parents to keep their children home the next day, but gave schools, daycare centers, kindergartens, and all public employees two working days to shut down.
That same day Parliament passed an Act that made major changes in the Epidemic Act, which Denmark has had in force since 1915. The current Epidemic Act dates from 1979 and has been amended with minor revisions several times since then.
The Bill that was put before Parliament includes a lengthy account of how the amendment Act changes the previous Act and how the changes relate to fundamental rights in the Constitution and in human rights instruments. It was passed by Parliament in a very short space of time. No cases challenging its legality have been brought before the judiciary.
Every single member of Parliament supported the amendment Act. The most important measure of the amendment Act was the centralization and transferal of power from the regional Epidemic Commissions to the Health Minister.
The Epidemic Commissions, which had previously held power to initiate forceful isolation, forceful admission to hospital, forceful treatment, as well as the power to cordon off an area and prohibit certain types of large events, were decentralized authorities. Each of Denmark’s five regions had its own Epidemic Commission consisting of a police director as the chair, a physician, a veterinarian, and representatives from the tax authorities, the hospital, from the emergency management agency, and three regional politicians.
With the amendment, power was transferred and centralized to the Minister who was given the authority to decide in all the matters that had previously belonged to the regional Commissions, and he was also given new powers. The Health Minister is now authorized to access a person’s home with police assistance without prior court order. He is also entitled to use police assistance to isolate, examine or treat a person who is infected or believed to be infected with one of the communicable diseases listed in the appendix to the Act.
The Health Minister has used his new authority to limit the freedom of assembly through a Ministerial Order. This order prohibits assembly of more than 10 people both indoors and outdoors, both at home and in public spaces (however, with exceptions being made for political meetings/protests, supermarkets, places of work, etc.).
Under article 71 of the Danish Constitution, deprivation of liberty outside the criminal law area, must be subject to trial by a Court upon request. The sanctity of a person’s home is protected in article 72 of the Danish Constitution. The protection is, however, limited, since the Constitution only requires a court order when access to a person’s home is not warranted by law. The Epidemic Act now warrants such access rights for the State. As such, the legal measures adopted at the foot of the Covid-19 epidemic do not undermine the democratic rule of law as protected in the Danish Constitution.
The legal measures have been adopted with a sunset clause and will no longer be in force on March 1, 2021, unless Parliament has decided to prolong them.
The overall reaction of the public has been one of trust in the Government and the authorities.
The Scandinavian countries are known for a high degree of trust in authorities and in each other, and this has also been the case during the COVID-19 crisis.
The director of the National Health Board has, in particular, attracted praise for transparent and honest communication, and ministers and authorities have held daily televised press briefings with critical questions being asked and answered.
It is obvious from the daily epidemic watch report that COVID-19 case counts are falling, indicating that the public has followed the advice of the authorities.
On April 6, 2020 the Danish Prime Minister announced a gradual opening of society beginning on April 15, 2020. The gradual opening comes as the numbers of hospital admitted patients demonstrate that the Danish capacity is underused. A gradual opening is expected to raise numbers in a controlled manner.
Some public concern has been expressed prior to the expected partial re-opening of society, mainly by parents. The partial re-opening sends children in daycare, kindergarten and schools up to grade 5 back to normal operation, although with several guidelines in place from the National Board of Health on hygiene measures (such as twice daily washing of toys, good hand hygiene, two meters of distance when eating, and activities outside as often as possible).
As of late May 2020 many areas of society are being re-opened with limits on the freedom of assembly being relaxed somewhat.
Janne Rothmar Herrmann is a professor at the University of Copenhagen Centre for Advanced Studies in Biomedical Innovation Law (CeBIL).