The Government and the Supreme Court will amend the Infection Control Act and give future governments the opportunity to introduce isolation and quarantine measures without bypassing the Storting. The amendment is controversial, and when the legislative amendment was debated in the Storting on 8 December, Health Minister Ingvild Kjerkol (Ap) said that it is the “King in Council” who should have the authority to introduce restrictions on freedom of movement. But in the bill it only says “The King”. The discrepancy between what the government says and writes is not insignificant. news has spoken to several experts in administrative law who say that the difference in wording is completely decisive (see below). – There is an important difference between the two formulations Hans Fredrik Marthinussen, Professor at the Faculty of Law, University of Bergen – When it is only written “the king” this means, according to our state custom, that decision-making competence can be delegated further down the administration, as stated in the text you sent me. This means that we can end up in a situation where there are employees in the Directorate of Health – for example Nakstad – who make such decisions. Svein Kristian Arntzen, professor at the Faculty of Law, Norway’s Arctic University – The distinction “King” and “King in Council” is decisive for whether he delegated legislative governing power can be further delegated. If the law uses the expression “The King in Council”, the delegated legislative power must be exercised by the King in Council. The legislative governing power cannot therefore be further delegated. The now repealed corona law from 2020 delegated legislative governing power to the “King in Council”. Jan F. Bernt, Emeritus. The Faculty of Law, UiB – There is an important principled and practical difference between the two formulations. It is now established practice that decision-making power as a general rule is assigned to “The King”. This wording is an expression that this is governing power that can be delegated to one of the ministries. Whatever happens, the Government decides there. “The king in the council” is a formulation that is used for fundamentally and practically important decisions where a more formal case management is desired in that the ministry must first draw up a proposal which then goes to the council for consideration. This does not need to be significantly more time- and labor-intensive than when the decision is made directly in the ministry, but will create a clearer awareness of the matter and mark the Government’s overall responsibility for the rules that are given. The most important thing about the election of “The King in the Council of State” is that it marks that the type of decision in question is not quite a curative form of regulatory technique, but is intended to be used only in very special situations. Hans Petter Graver, professor at the Faculty of Law at the University of Oslo – If the king is in the cabinet, then the government must decide. If it says only the king, it can be delegated to the ministry. The draft law is approved by the king. Eirik Holmøyvik, professor of jurisprudence at the Faculty of Law at the University of Bergen – The distinction between “The King” and “The King in Council” is important legally, as the use of “The King in Council” means that the decision cannot be delegated to the ministry and other subordinate bodies , as the Directorate of Health. In other words, the government must collectively make the decision in the body The King in Council. If the law uses “The King”, the government can, by royal resolution, decide in the King in Council to delegate decision-making competence to the ministry or other subordinate body. The government will continue to be constitutionally and parliamentaryly responsible to the Storting for decisions it has delegated to other bodies. The practical difference is that 1) the government as a collegium must take a position and meet on the decision, and 2) that the decision of the government in the King in Council must be based on the Cabinet report, which is then scrutinized by the Control and Constitution Committee at the Storting. In short, the wording “The King in Council” means that the entire government becomes involved. The government as a collegium must take a position and discuss the decision. When the word “The King” stands alone, governing power can be delegated to one ministry and their subordinate bodies, for example the Directorate of Health. Despite serious objections, the government wants to make the “covid powers” permanent. – This is quite alarming – It is serious that the Minister of Health and Welfare provides incomplete and inaccurate information about the change in the law, says Morten Walløe Tvedt, who is professor of jurisprudence. – This is quite sensational, says Hans Fredrik Marthinussen, who is a professor at the Faculty of Law in Bergen. news has asked the Minister of Health whether the reference to “The King in the Council of Ministers” was a pretext, all the while the legal text says “The King”, but has not yet received an answer. Alfred Bjørlo (V) believes that the level of precision is symptomatic of legislative work that progresses far too quickly. – This shows how hasty and poorly thought out this case is. You don’t mess with democracy’s basic rules of the game – least of all in a matter that involves shutting down the country and introducing extremely invasive measures in most people’s lives, he says. The ministry answers Ole Henrik Krat Bjørkholt, state secretary in the Ministry of Health and Care – Regulations on isolation and quarantine may be necessary in the event of a pandemic in the future. In that case, it is important that we have a set of regulations that are determined by the Storting in advance, and that are designed so that they work as intended, namely to stop the spread of serious disease in an efficient way. – We are shocked that the Ap/Sp government has presented such a poorly prepared and poorly thought-out case to the Storting on such a big issue – and even more surprised that Høgre seems to support the government, says Alfred Bjørlo. Photo: Annika Byrde / NTB – The pandemic has taught us that the measures were big The argument for making the regulatory regime from the pandemic more permanent is that the government needs to act quickly and effectively in times of crisis, and that the “normal” constitutional processes are too slow. To this, the opponents object that a state of emergency – such as a pandemic – is rather an argument that the limits of the government’s power should be clearer. In the Aftenposten commentary “Long covid for the rule of law”, Harald Stanghelle warns against the powers that are on the way to being enshrined in Norwegian law. He refers to several municipalities that crossed the line during the pandemic, even if they acted in good faith. Stanghelle points to the decision in November 2020, when Bergen municipality introduced a ban on gathering more than five people for private gatherings in one’s own home, as “the most serious” verdict. The municipality has since gone to great lengths to acknowledge that the decision was too intrusive. In their own consultation response to the bill, they write: “The pandemic has taught us, and the corona reports have documented, that the consequences of these restrictive measures were great.” In the wake of the pandemic, the Norwegian Bar Association surveyed the experiences of its own members. The survey showed that two out of three lawyers believed legal certainty had been “particularly challenging” that year. In the Storting, Health Minister Ingvild Kjerkol (Ap) said that it is the “King in Council” who should have the authority to introduce restrictions on freedom of movement. But in the bill it only says “The King”. Photo: NTB – Save the gunpowder for later Law professor Eirik Holmøyvik at the University of Bergen studied the use of law during the pandemic for the Corona Commission. There he pointed out that the transfer of power to bureaucrats was at odds with the Constitution’s principle that “all important matters” must be dealt with at political level, in the Cabinet. – In this specific case, the reactions are, in my view, somewhat exaggerated, says Holmøyvik to news. He refers to claims of “blank power of attorney”, “democratic madness” and “authoritarian tendencies”. The latter was said in Dagsnytt Atten on Monday afternoon. – The intermediate home in the Infection Control Act was adopted because the pandemic showed a deficiency in the Infection Control Act to protect public health against pandemics. There may be divided opinions on whether it is professionally necessary to have such a home, but he is not a threat to democracy, says Holmøyvik. Work on a comprehensive revision of the legislation related to infection control and health preparedness is under way, but according to the government it is “some time in the future”. The work is based on the reports to the Corona Commission and the Corona Committee. Holmøyvik wonders why the Storting treats today’s bill separately rather than waiting for the entire revision. – In my view, it is a relevant objection. I would recommend saving on the gunpowder until the health doctor’s review comes. On Tuesday, the Storting will vote on a proposal that could give the government the right to carry out drastic measures in a future pandemic. – There may be divided opinions on whether it is professionally necessary to have such a home, but he is not a threat to democracy, says Eirik Holmøyvik. Photo: Kim E. Andreassen
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The Storting says yes to the new infection control law – news Vestland
