Although the Dutch partial lockdown includes measures such as wearing face masks in public and self-isolation in the case of illness or travel, the use of masks and quarantine in the Netherlands cannot currently be made compulsory.

During a press conference on Tuesday evening, prime minister Mark Rutte and health minister Hugo de Jonge said they are working on urgent legal change to make face masks obligatory, and another to fine people who do not stick to 10 days quarantine.

So the ‘urgent advice’ to wear face masks and which is now presented by the government on its website as a new rule, is actually not grounded in law. But what the legal issue with making masks compulsory at the moment?

Jan Brouwer, a professor of law in society at the University of Groningen and director of research institute the Centrum voor Openbare Orde en Veiligheid, has led criticism of the government’s measures. He told DutchNews.nl that the Dutch constitution guarantees a right to privacy, including what you wear, as well as a right to gather, and these laws cannot be restricted, he said, without an act of parliament.

Problem

‘We have a lot of fundamental rights in chapter one of our Dutch constitution, and in a constitutional process in 1983, we decided that there is always a need for an act of parliament in order to restrict fundamental rights,’ he explained. ‘The limitation of fundamental rights is not allowed in emergency municipal bylaws, and that was the problem in spring.’

Since a Council of State ruling in May found that restrictions could only be applied under emergency laws for a limited period of time, the government has been working on a temporary Covid-19 law. After a huge amount of debate and amendments, this has just passed the lower house and is expected to be voted on in the senate on October 27.

Health minister Hugo de Jonge told MPs on Wednesday he will introduce compulsory face masks as soon as the coronavirus legislation has been passed, and that the legislation includes a specific clause allowing ministers to bring in rules about personal protection

Until the requirement is anchored in law, the cabinet will continue to ‘urgently advise’ everyone over the age of 12 to wear a mask in public buildings.

Brouwer, who had called for parliament to break its recess in August to deal with this issue and gave evidence to MPs himself in September, said that while officials can ask sick people to quarantine for the sake of public health: they just cannot tell healthy people to do this.

Healthy

‘As long as we don’t have the temporary Covid law, it isn’t possible to limit fundamental rights except in provisions from the public health law, which allow mayors to put sick people in quarantine or isolation,’ he said.

‘If there was a strong opinion that face masks helped preventing spreading the virus, you could say emergency law on a national scale would create a kind of exception to the rule of an act of parliament being necessary. But the RIVM has always been very ambivalent about the effect of wearing face masks.

‘In order to prescribe the obligatory wearing of face masks, in my opinion there was a need for a new provision: this infringes the right to privacy, described in our constitution for respect for the right of private life,’ he said.