By Danaja Fabcic Povse, 11th June 2024
Introduction
Who still remembers the covid-19 pandemic in 2024? To many, though perhaps not health (law) scholars, it may feel like it happened in another lifetime, although it’s only been a little over one year since WHO officially declared it over on May 5, 2023. This blogpost takes advantage of the anniversary to offer a retrospective on the challenges of take-up of evidence in the EU’s pandemic response and suggest some ways forward. It asks the question how can the EU improve the take-up of scientific evidence in legislative processes be improved, based on the covid-19 experience.
The challenge of evidence-based pandemic measures
When the covid-19 pandemic, precipitated by the novel pathogen SARS-CoV-2, hit in early 2020, the initial lack of knowledge presented a significant challenge to decision-makers who needed to take urgent action in preventing its spread.
In a remarkable demonstration of global scientific collaboration, a vast number of articles, preprints, opinions, and data were published within months, leading to early recommendations for policymakers aimed at curbing the virus's spread.
However, all was not smooth sailing as the story of masking in public spaces showed. Early inconclusive evidence on transmission led policymakers to initially deem masks inefficient for public use, reserving them for healthcare workers in hospitals to ensure supply. Later research, however, confirmed that masks were efficient in reducing transmission. The resulting relationship between the delay and the efficiency of measures is not clear.
An “evidence-informed” EU legislator
Prior to the pandemic, mechanisms such as the Better Regulation initiative had already been established. The 2015 framework encourages the three co-legislators (Commission, Council and Parliament) to consult with experts and consider scientific evidence resulting in a regulatory impact assessment (RIA, usually found in part 3 of a proposal); however, in practice the Council and the Parliament rarely if ever follow the procedure.
It is noteworthy that despite the Commission’s claims of its being evidence-informed, and despite the input of advisory groups, few of the pandemic response frameworks were accompanied by a RIA (for example, not found in Roadmap on reopening, Regulation (EU) 2021/953 on interoperable certificates, Regulation 2022/2371 on serious cross-border health threats) and instead contained vague references to stakeholder and expert consultations (compare with the stringent requirements on member states when imposing additional restrictions!). The lack of transparency makes it difficult to establish the actual role of evidence, which makes one wonder if they were used to hide political priorities instead, as Cairney suggested in his 2016 book on the complex politics behind evidence-based policies (see especially chapter 2).
Improving EU evidence-based policy-making in future pandemics
How then, could legal framework help to improve the take-up of scientific evidence in future pandemics?
First, increase transparency about the take-up – what evidence was (not) consulted during the legislative process and how it impacted (if it did) the resulting choices. This would entail the European legislator consistently disclosing its “thought process” in the RIA. A good example is the long negotiated and recently adopted European Health Data Space, where both the evidence base (the studies and consultations) as well as the policy choices are explained. However, currently there are no legal consequences attached to the legislator foregoing a RIA, which leads us to the next point of improvement.
Second, clarify the scope of judicial control over the RIA (and the evidence base). According to current case-law, the CJEU mostly looks at whether a study has been carried out rather than examining its substance, limiting itself to a procedural check. Although in the Vodafone case (C-58/08) it also reviewed the substance of the study, that appears to be an exception as the approach does not seem to have been followed in subsequent cases. A more substantive approach could also be helpful in monitoring the legislator hiding behind the evidence claim to mask political priorities. Nonetheless, judicial control over evidence base should not mean that the CJEU takes on a role of a political body or policymaker, nor should it disrupt the current institutional balance.
Third, adopt a meta-evidence approach, i.e. using evidence about evidence take-up could be helpful to the legislator in implementing Better Regulation rules more effectively. Considering the findings of empirical studies on evidence-based policies in early pandemic, could provide further guidance on designing policies to support evidence take-up.
Finally, despite the usefulness of scientific evidence, democratic legislative processes are also shaped by interests and values. As Davies states: “The pandemic responses show that (i) science is often neither clear nor determinative, and (ii) policy is invariably a mix of science and values, even in apparently technical fields.” Considering the impact of the covid-19 pandemic on almost all aspects of life, and the heated public debates on values, vaccine misinformation and hesitancy, evidence could be used to establish consensus, similarly to decision-making processes in international climate law.
Credit: Cover Image by Samado, via Pixabay
