the Board of state Informedfor Government The need to update and improve health legislation This, among other things, It serves as a legal framework for regional executives Act against pandemicWhen the alarm condition is not active.
This is, in particular, the Basic Law of 1986 on Special Measures in Public Health, the content of which they understand “may require legislative amendment providing further detail and precision, in order to provide health authorities competent The best possible legal framework to deal with current and future situations A serious danger to public health. ”
This was shown by the main advisory body of the government in an opinion sent on March 22 to advise it on whether to appeal the unconstitutionality of the Galician reform of the health law recently promoted by the director regional executive of Alberto Nونñez Viejo. – The Council of Ministers agreed to submit the aforementioned appeals last week.
In its opinion, the Council of State understands that it is appropriate to seize the Constitutional Court of the aforementioned regional rule, knowing that it exceeds for example the limits in terms of compulsory vaccination.
However, this body also takes the opportunity to point out the need for this modernization of the State’s health legislation because, as it realizes, this “certainly does not contain the appropriate mechanisms to deal with a crisis of this magnitude”.
The law “for almost 40 years”
In this sense, they designate it It is a standard that he applied “nearly forty years ago”.And that it “contains a very general list of special public health measures which limit fundamental rights and public freedoms”.
“It may be insufficient, according to the constitutional principles of administrative competence and legal certainty, to confront The needs faced by competent health authoritiesrecognizes the Council of State in its report, compiled by Europa Press.
In any case, the report of the Council of State, obligatory but not binding, considers that it is appropriate to file an appeal of unconstitutionality against one of the articles specified in the Galician law on health, those relating to the measures of fight against the epidemic – – in particular, Section V of the single article of the Autonomous Community of Galicia Law 8/2021, of February 25 -.
The aforementioned fifth section introduces Article 38 of the Galician Health Law into two parts, and the Council of State agrees to appeal the second part: the part that deals with preventive measures of recognition, treatment, hospitalization or surveillance in the event of a risk to the health of the population.
In addition to other general measures, the Feijóo reform provides that patient control measures can be adopted, such as home isolation (currently confinement of people with coronavirus), confinement in a hospital center, solitary confinement or detention in another suitable place.
The new standard also includes screening measures for people who have been in contact with sick people (such as those currently isolated from positive contacts); Or undergo preventive preventative measures, including vaccination or immunization.
This section of the law also allows control measures on the “immediate environment” of the patients or those with whom they have been in contact, as well as on the “affected areas” (geographical locations), which may involve, for example example, movement or circulation restrictions. (such as closing the perimeter of cities). or health zones) or restrictions on groups of people (such as the meeting limit, as is currently the case in Galicia).
He rejects compulsory vaccination by Galician law
The Council of State places particular emphasis on the aspect of vaccination. In this, the report says “It is necessary to analyze it and to wonder about its state, Based on the division of powers between the state and corporations. In other words, he is in favor of asking this question to TC.
On the contrary, it is rather a question of defending aspects such as the restriction of mobility. He also cautions that although not included in Basic Law 3/1986 (a state law that serves as a legal framework for the development of regional regulations), he believes it is “undoubtedly ‘an appropriate measure to control patients, persons who have been or have been in contact with’. their immediate environment. ”
In this sense, remember that your Regional Board of the National Health System The CISNS has established territorial delimitation measures which, with a few exceptions, have been validated by the Supreme Courts of Justice. In this respect, he approves of the fact that Council agreements are “binding”.
Thus, it analyzes that the Galician law limits the restrictions to the “immediate environment” of the diseased and affected areas “under the terms” of the state statute. “He does not plan to adopt measures to restrict or restrict the movements A more general scope would distinguish, because of its greater degree of influence on fundamental rights and public freedoms, from the declaration of a state of alert”, adding in this respect that the government intends to seize the Joint Technical Commission.
Finally, he mentions a third measure of the fifth division mentioned above, in relation to the restrictions imposed on the gathering of people. On the one hand, he claims that the measures established by Galician law “do not seem different” from those that have already been adopted and continued in the last year of the epidemic.
But it clearly shows that what is important is whether societies can, from a constitutional point of view, develop state law to include it in regional legislation. In this sense, the Council of State affirms that there are questions of freedoms and fundamental rights which must be reserved for the State to ensure, among other things, “that they are adopted by qualified majority and constitute the minimum common denominator throughout Spain. ”
For all these reasons, the Council of State notes the reasons why Article 38 of the Galician Health Law was submitted to the TC (section V mentioned above), but understands that the requirements for the adoption of measures (article 38ter or section VII) are specific offenses and sanctions (paragraphs 12 to 15 or articles 41 bis to 44 bis) “does not appear contrary to the constitutional order”.