By Malcolm Langford and Kristin Bergtora Sandvik
On its face, Norway is a COVID-19 success story.
Facing rapidly increasing infection, the government introduced on March 12th, 2020 a wide-ranging lockdown. The sovereign wealth fund was tapped to bolster public spending and ensure that welfare for most citizens remain relatively unchanged. By April, the outbreak was brought under control; and, as of May 7th, domestic lockdown restrictions were partially eased.
This success is partly due to widespread trust in government and national public health authorities, and the mobilization of the deeply ingrained cultural concept of “dugnad,” voluntary and collective work. However, the government’s interventionist response raises many questions with respect to the rule of law and human rights, which we explore in this blog.
Initial response
An initial response to the pandemic in Norway took the form of an Emergency Powers Bill. The bill entailed a comprehensive transfer of power from the parliament to the executive powers for the adoption of temporary laws to tackle the spread of COVID-19 and the consequences of the lockdown.
While it included checks and balances (a third of the parliament could override a regulation), the proposal aroused enormous consternation and generated an overnight campaign by legal scholars, the bar association and lawyers, the judge’s association, and other civil society organizations. Some claimed that the rule of law was being placed in quarantine. The proposed bill was critiqued for its disregard for key constitutional principles, vague language such that it could be applied to non-COVID-19-related matters, neglect of existing legislation that provides the government with emergency powers in times of health crises, excessive duration (it would expire only in 2021), and its occlusion of possibilities for citizen insight and judicial reviews.
After a lightning fast expert hearing, a unanimous parliament adopted a strongly amended bill that came into force on March 27th. It greatly reduced the power to make new laws, expanded judicial review, and limited the law to one month’s duration with the possibility of extension.
While the parliament has been somewhat vigilant in reviewing the stream of legal changes, the revised law has been nonetheless critiqued for lack of transparency, vague enabling powers, and still-limited judicial review. Nonetheless the law was extended in April through May 27th.
During the lockdown, restrictions on rights were numerous.
Freedom of association was heavily limited, with restrictions on the number of individuals that could meet in any public or private place. Freedom of movement was restricted formally with the closure of borders, quarantine requirements, and a ban on visiting second homes. Further restrictions on movement were imposed by many municipalities, which prohibited the crossing of municipal boundaries or the North-South divide.
Beyond civil rights, several social rights were especially targeted, including education, through closures of schools and universities, and the right to work. Finally, non-COVID-19 hospital treatment was deprioritized and social workers were moved out of protective services and into infection tracing.
The lockdown also affected the judicial enforcement of rights. Social distancing entailed a physical closure of courts, and the uptake of digital trials has been slow. In practice, this has meant “legal distancing”: great regulatory haste in the passing of numerous emergency laws on the one hand, and an institutional slowdown of due process mechanisms and bureaucratic decision-making on the other. Resolving the large backlog of cases is now dependent on local and judicial preferences.
Disproportionate effects
The effects of both COVID-19 and the lockdown have been unequally distributed. Reports coming in during the first weeks of the outbreak showed a disproportionate rate of urban patients with immigrant backgrounds. Amongst the most affected by the lockdown were asylum-seekers and refugees. Few asylum seekers have managed to leave or to arrive, Dublin returns have been halted, and the UNHCR has paused its resettlement program – Norway’s main protection mechanism. As many predicted, the effects on vulnerable children and adolescents have been disproportionate. A government report, initially censored, found that all major actors overreacted in focusing on infection prevention to the detriment of services for vulnerable children and adolescents. Persons in institutions have also been deprived visitation rights, from nursing homes, to prisons, to housing for people with disabilities.
Privacy issues
Another key concern in the Norwegian response to COVID-19 relates to potential infringements on personal privacy. On April 16th, the government launched the Smittestopp app. The objective was to “see who has been in the proximity of infected persons, thus helping to curb transmission.” Fifteen minutes of proximity within 2 meters distance triggered an SMS warning. The app also collects data for research on population movement to “develop effective infection control measures.” However, it raises many questions around data privacy: the source code is not open, and data is moved from the phone to the server in Ireland on an hourly basis through GPS and Bluetooth data (a different approach from that taken by Google/Apple).
Prime Minister Erna Solberg stated that downloading the app was a civic duty and 11 days later, 1.5 million adults in Norway had downloaded it. However, there may be a dark side to the public’s widespread trust in government. The product is still in a testing phase, and there are important questions with respect to cybersecurity, function, and mission creep. There are also concerns about distributive impact, particularly on labor relations, access to justice (client/lawyer privileges), and freedom of the press (source protection).
Conclusion
Norway has been relatively successful in fighting COVID-19 and has not suffered the high death and transmission rates of its neighbor Sweden, which has pursued a more liberal approach. However, the blanket restrictions on human rights and threat to the rule of law raises questions as to whether the government has overreacted.
Malcolm Langford is a Professor of Public Law at the University of Oslo, Director of the Centre on Experiential Legal Learning (CELL), a Centre of Excellence in Education (SFU), and Co-Director of the Centre on Law and Social Transformation, Chr. Michelsen Institute and University of Bergen.
Kristin Bergtora Sandvik (LL.M 2003, S.J.D Harvard Law School 2008) is a professor of legal sociology at the Faculty of Law, University of Oslo and a Research Professor in Humanitarian Studies at PRIO. She works on the digital transformation of humanitarian action and refugee management with a focus on legalization, accountability, ethics and rights. Most recently, she has published on legal tech as law and development, humanitarian wearables and digital dead body management.
During Spring 2020, Langford and Sandvik have organized the weekly public webinar series ‘Corona and the Rule of the Law.’
