Regulating in Times of Tragic Choices

These are times of “tragic choices.”

The devastation caused by the COVID-19 pandemic has been made even more tragic by the limited and uncertain knowledge upon which regulations and decisions are based, as well as by the short time in which rules and decisions have to be made in order to be timely. Some of these time-sensitive, tragic decisions include those of prioritizing patients with the best chance of survival in intensive care, restricting diagnostic or serological testing possibilities, limiting citizens’ freedom of movement and economic activities, prioritizing subsidies for some social categories over others, and alleviating manufacturing restrictive regulations by defining which factories (or when factories) can reopen.

Italy has been the first European country and the first constitutional democracy to center regulation “at the heart of the response to COVID-19.” Rather than a structured model, Italy’s response consists of a frontline where people, together with their multi-level governments, are experimenting with a regulatory balance among competing values. The equation is complex, a real conundrum. It requires considering not only the competing concerns of health and business, but also fundamental rights—a variable which is not relevant in the same way in different parts of the world. Responding to COVID-19 necessitates the legitimate and proportionate coercion for imposing social distancing measures, as well as providing data protection for smart tracking technology.

All this is of great interest from a regulatory perspective.

First, high-quality regulation is not easily achieved when rules are the result of a layered series of urgent laws and decrees. The Italian government is regulating according to experts and the Protezione Civile—the Department of Civil Protection—which might imply a greater gathering of evidence in the regulatory process.

A number of concerns about evidence, however, undermine quality regulation. These concerns include problems of data quality, as few diagnostic tests have been available, and misalignments of statistical measurements, as the mortality rate in Italy includes people with comorbidity. More generally, the limited knowledge about the coronavirus makes good regulation particularly challenging to attain.

Second, the regulatory enforcement of social distancing measures combines an integrated approach: trusting in people—by establishing self-limitation of free movement and mandatory self-quarantine—as well as strictly enforcing rules via police controls and drone monitoring.

In other words, the Italian government is pragmatically considering that in a war where everyone has to fight, compliance is indispensable, but rules also must be rapidly and consistently enforced, resulting in unambiguous prescriptive messages. Communication is part of this game. For example, every day the Ministry of the Interior publishes information about the enforcement of social distancing regulations.

Finally, we turn to regulatory effectiveness. As never before, compliance is directly related to its outcome—the trend of the pandemic curve—even though the data set of controls on social distancing measures is, at the moment, not sufficiently specific for conclusive insights. With that caveat, Italian regulation does seem to be effective. A recent report out of Imperial College London estimated that the lockdown and social distancing measures have already averted 38,000 deaths as of March 30.

On the other hand, not everything has worked perfectly.

Specific implementation decisions have caused problems. For example, when news of the lockdown first broke, massive groups of people fled from Northern Italy to the South, potentially exposing many more people to the coronavirus. Fortunately, social distancing measures have been observed, and southern regions may soon be expected to have zero new cases.

Criticism has also been directed at the Italian public health care system, Servizio Sanitario Nazionale, which is not designed to face a large-scale epidemic. Initially, delays in separating patients being treated for COVID-19 from those being treated for other pathologies contributed to the diffusion of the pandemic. During recent weeks, however, there has been an incredible strengthening of the public health care system’s productive capacity.

Other dysfunctionalities affect multi-level decision-making, as is evident in the relationship between central and regional governments in responding to COVID-19, which led to a “fragmented chain of command” and tense dialogue between central and local governments.

In addition, the relationship between Italy and the European Union has been characterized by real tension—especially considering the European Union’s slow response to the economic hardships that have developed due to the pandemic, which has had especially severe effects on Italy and other southern European countries. A recent survey concludes that today’s Italians trust in national institutions more than they have in the past—while trusting ever less in European institutions.

Italians’ lack of trust for European institutions is really bad news because trust must be at the center of the “war-like mobilization” required to fight COVID-19. Governments need to trust experts and the private sector; people need to trust their national and local governments, as well as the experts who help guide policymaking. Similar trust is needed between regulators, at the national and international level—and so on.

It is time to move onto the second phase of the coronavirus response to confront the challenges created by widespread unemployment and poverty. Just as during the strict lockdown phase of the government’s response, it is clear that regulation will continue to be a matter of life or death, especially for elderly individuals, who are probably the most vulnerable actors in the “tragedy.”

Maria De Benedetto is a professor of Administrative Law at Roma Tre University.