2G a proportional intervention in a dire situation?

Dobbelstenen met tekst 2G maatregel

Prof. Janneke Gerards was one of the quests in the programme Rode Hoed where was talked about the 2G policy; that entails that non-vaccinated people no longer have access to all places where a coronapas is required, including the hospitality industry, theaters and events. The government intends with the 2G policy to prevent further increase of infections and overburdening of healthcare, while in politics and society the discussion is heated. Is such a curtailment of fundamental rights proportionate given the current situation and the potential effect on the number of corona infections? And what does 2G mean for the future of our fundamental rights?

Restrictions on fundamental rights through corona measures

During the corona crisis, restrictions on fundamental rights became 'normal', but we also began to realize more and more how important those fundamental rights actually are, argues Janneke Gerards. Many corona measures restrict our fundamental rights: the right to freedom of movement, healthcare, education, equality, just to name some of them. But the measures do affect fundamental rights to different degrees. Whereas the curfew, for example, severely restricts freedom of movement, the 2G rule does so to a much lesser degree. Still, the 2G rule is also a substantial measure compared to many other measures. It is therefore logical that the debate on fundamental rights flares up again, as it did with other measures such as the obligation to wear masks or the 3G-rule. That the debate about fundamental rights is becoming increasingly fierce is not surprising after more than one and a half years of corona in the Netherlands.   

We have been engaging in incidental politics since the beginning of the corona crisis, and each time we are overtaken by the virus and new measures have to be taken. Now is the time to start thinking in the long term, about future scenarios, what the measures then should be, and what they mean for our fundamental rights.

A future with corona

Earlier in the discussion in the Rode Hoed, field epidemiologist and microbiologist Amrish Biadjoe stated that the coronavirus will remain among us for longer then we previously expected. As a society, he said, we therefore need to engage in a conversation about what is an acceptable level of mobility by the coronavirus and what measures are (constitutionally) acceptable to keep the coronavirus under control. Janneke Gerards agreed, but also added that a discussion on fundamental rights is complex. Fundamental rights are fluid; as long as you don't get to the core, a lot is possible when it comes to restrictions. The tricky thing is that fundamental rights can also clash with each other, and there are almost no fundamental rights that are always and in all circumstances more important than others. Subsequently, the individual interest also clashes with the collective interest. Physical integrity is extremely important, but the same applies to the health of us all. As a result, it does not always say that much when people argue that "the fundamental rights" are being violated. The question is: which fundamental rights are at stake, in what way and to what extent are they affected, and also: how should these rights be weighed against each other? 

At night I also sometimes lie tossing and turning. When I lie on one side I think 'individual freedom and bodily integrity, that's so important', but then when I lie on the other side I think 'so is the health of all people'.

2G acceptable under certain conditions

Amrish Biadjoe also argued that a civilized, developed country like the Netherlands should have never came in this dire situation. After all, the "numbers": infections, hospitalizations and deaths, have been increasing for months. Moreover, we already knew that the vaccines do not protect for the full 100 percent, and that - as with all other vaccinations - there is a limit to the willingness to be vaccinated. Prof. Janneke Gerards believes that, now that we have unexpectedly ended up in this dire situation, the 2G policy can be introduced without too much damage to our fundamental rights. There are, however, a few conditions. There must be a careful legal basis which has been extensively discussed in parliament, the policy must have a clear goal, it must be demonstrated that it can make an actual contribution to reducing the corona infections to an acceptable level, and there must be no realistic alternatives. If these conditions are met, and if 2G allows us to reduce the numbers to such an extent that less drastic measures can be used in the future, I believe that this measure is now acceptable, says Prof. Janneke Gerards.

3G, 2G, or 1G?

During the discussion, both philosopher Dr. Fleur Jongepier and Dr. Health Law Corrette Ploem describe one of the sore points of the 2G policy. It is strange that vaccinated people, for whom possibly the effect of the vaccine has already decreased and who may be infected, are allowed to enter anywhere, while people who have been tested, and therefore in all likelihood do not have corona, are denied entry in the same places. In this case, 2G is merely coercion to make vaccinated people go to the injection sites; that is not a justified purpose to restrict people's fundamental rights. Prof. Janneke Gerards emphasizes that 2G should indeed only be introduced for the right reasons, namely if it can be shown that unvaccinated people get infected faster, spread the virus faster, and end up in hospital more often. It seems that the 2G policy is more effective in ensuring that fewer people ending up in the hospital than the 3G policy. 1G (whereby only people can be admitted if they have been tested, regardless of their vaccination status) is probably even more effective. At the same time, such a 1G policy is difficult to implement and in turn restricts the fundamental rights of vaccinated people, argued Pieter Jan Dijkman, director of the Scientific Institute for the CDA.

If I have to mention one positive point of all the measures is that we have finally all started to discuss fundamental rights. In the past it sometimes seemed that fundamental rights were only there for the less 'popular' groups within society: prisoners or migrants for example. That sometimes made it difficult to protect them. Now we have came to understand that fundamental rights belong to all of us, and that it is terrible if they are restricted.

No 2G at this moment

A few days after the Rode Hoed programme, news came out that 2G will not be introduced at this moment. There currently seems to be insufficient support for the 2G policy in the Dutch parliament. Apart from the parties that find 2G measures undesirable because of the conviction that 2G is too much of a restriction on fundamental rights, there are also parties that have dropped out for fear of a further divide in society. Minister Hugo de Jonge hopes that in the future parties will change their points of view. For now, 2G is out of the question anyway. The Outbreak Management concluded that in the current situation the figures will not be brought down by the 2G policy; the infections are too high for that. So, to quote Prof. Janneke Gerards once again, at this moment there is no justification for introducing 2G.