Uncertainty, Administrative Decision-Making and Judicial Review: The Courts’ Perspectives

The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to contribute to governing crisis management. Although differences exist across countries, depending on institutional varieties and political contexts, the analysis shows that, even in times of emergency, courts can provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and across the multiple phases of the health crisis. Differences in the balancing have emerged compared to during ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision-making and new balances between precaution and evidence-based approaches. The role of scientific evidence has been at the core of judicial review to ensure transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants across countries have been used to scrutinise the legality of measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.