Preparing for the next pandemic

Rachael JohnsonWednesday 17 January 2024

A protester holds a banner outside the UK Covid-19 Inquiry, where the former Prime Minister Boris Johnson is giving evidence, in London, 6 December 2023. REUTERS/Maja Smiejkowska

The impact of the Covid-19 pandemic is still reverberating across many areas, from procurement to employment and human rights. Global Insight assesses how the experience will prepare us – and the law – for future pandemics.

It’s highly unlikely that the Covid-19 pandemic will be the last such worldwide event. Plans are therefore being made in numerous jurisdictions to prepare for a future pandemic, responding to the experience of Covid-19 and aiming to apply the lessons learned, from a practical point of view but also in terms of law and policy.

These plans include setting up government-level agencies to develop a national response strategy, signing contracts with vaccine manufacturers, improving healthcare infrastructure, requiring medical facilities to hold certain volumes of stock, collecting and sharing pandemic-related data and implementing new laws.

In the UK, the Health Security Agency has launched a Vaccine Development and Evaluation Centre to develop new vaccines for both the country and worldwide. The Centre’s work will target ‘deadly pathogens with pandemic potential’ for which there’s currently no vaccine. The government has also negotiated a deal with vaccine manufacturer Moderna to establish an Innovation and Technology Centre in the UK with capacity to produce up to 250 million vaccines a year.

In Europe, the EU FAB network has been established through a framework contract between the European Health and Digital Executive Agency and four EU-based contractors. These four companies will ‘reserve manufacturing capacities for the EU to produce vaccines in case of public health emergencies’.

The EU has also developed Pandem-Source, an IT platform that will ‘identify, map and integrate multiple pandemic related data into a coherent pandemic-management database’. This is part of the PANDEM-2 project to identify ‘priority research needs for pandemic preparedness and response in Europe’.

The European Commission, meanwhile, has created the Health Emergency Preparedness and Response Authority (HERA) ‘to prevent, detect, and rapidly respond to health emergencies’. The Commission says that in an emergency, HERA will be tasked with ensuring sufficient availability of vital supplies such as medicines, vaccines and personal protective equipment (PPE). The EU FAB network contract was signed on behalf of HERA.

In the US the government has set up the Office of Pandemic Preparedness and Response Policy, which will be ‘charged with leading, coordinating, and implementing actions related to preparedness for, and response to, known and unknown biological threats or pathogens that could lead to a pandemic’.

Roberto Durrieu, former Pro Bono Initiatives Officer for the IBA Criminal Law Committee, Managing Partner of Estudio Durrieu in Buenos Aires and counsel at the International Criminal Court, says it’s only the very sophisticated countries that are planning for the next pandemic. The rest of the world is more focused on moving on from the Covid-19 pandemic, for example through digitising their systems.

The need for solidarity

Many countries were unprepared for the Covid-19 pandemic and are beginning to understand how this affected their response. ‘The Covid pandemic caught everyone off foot’, says Melinda Taylor, former Co-Chair of the IBA Human Rights Law Committee and counsel at the International Criminal Court. ‘No-one had systems in place, and no-one thought through the ramifications of various aspects [of the response] […] there was a real lack of a structural response.’

There’s a desire to learn from this experience to do better next time. The UK has set up its own inquiry, for example, to learn lessons for future pandemics by examining how the country responded to Covid-19.

For Catherine Longeval, former Co-Chair of the IBA Healthcare and Life Sciences Law Committee and a partner at Van Bael & Bellis in Brussels, the question is not if there will be another pandemic, but when – and its timing would affect planning.

Doctor Ruxandra Divan, rests in the Intensive Care Unit (ICU) for COVID-19 patients at "Hopitaux Civils de Colmar" in Colmar, France, 15 December 2021. REUTERS/Yves Herman

If it happens in the near term, public awareness will be high and there will be recent experience of rolling out mass testing and vaccinations. However, memories of the social and economic costs of Covid-related restrictions might make it a challenge to obtain support for similar measures. In contrast, if the next pandemic is 20 years away, collective memories will have faded. There will be more communications work to do but equally the population may be more open to restrictive measures.

To address these factors, pandemic plans should be reviewed on a regular basis. ‘Pandemic preparedness is an evolving process’, says Chukwukelo Ileka, an associate at Jackson, Etti & Edu in Lagos, ‘and the success of these efforts can only be determined by their ability to respond to real-world situations’. Longeval says pandemic plans should also address misinformation, which was rife during the Covid-19 pandemic, leading to high rates of vaccine refusal. ‘Education and information are key’, she says.

Some jurisdictions had pandemic plans in place before Covid-19, but these weren’t necessarily followed. Future planning should consider what went wrong and how initial feelings of panic can be addressed.

A pandemic would probably have been on risk registers before the outbreak of Covid-19, but most likely it wasn’t at the top of them. Roger Barker, Director of Policy and Corporate Governance at the UK Institute of Directors, says that ‘people find it hard to imagine unlikely things happening’. Scenario testing could help focus minds on pandemic plans and their implementation, which would hopefully combat panic – but Barker highlights that testing isn’t ‘a silver bullet’.

Taylor says it would be useful to extrapolate some of the positives from the response to the Covid-19 pandemic – what was done well and therefore what we can reference in the future – so we remember there’s light at the end of the tunnel, helping us feel less overwhelmed.

There’s a risk that nationally focused pandemic preparedness plans will result in an inequitable global response to a future pandemic. The response to Covid-19 tended to prioritise national needs. This was perhaps understandable in the circumstances. However, as Taylor says, ‘there was a real need for a multilateral response; there was a need for solidarity’.

In anticipation of the next pandemic, ‘Member States of the World Health Organization (WHO) have agreed to a global process to draft and negotiate a convention, agreement or other international instrument under the Constitution of the World Health Organization to strengthen pandemic prevention, preparedness and response’, according to a WHO news release published in June 2023.

The WHO adds: ‘At the heart of the proposed accord is the need to ensure equity in both access to the tools needed to prevent pandemics (including technologies like vaccines, personal protective equipment, information and expertise) and access to health care for all people’.

Taylor says a more structured approach such as the one the WHO proposes ‘can help protect the responses from the impact of populism or fear’. Longeval agrees. ‘If there’s a treaty in place’, she says, ‘hopefully that will change things, but we’re not there yet’. Discussions are now ongoing to finalise a negotiating text.

Vital supplies

The scientific community needs more funding so it can be proactive in developing vaccines that cover a broad spectrum of possible viruses. Jonas Bergstein, a former Co-Chair of the IBA Healthcare and Life Sciences Law Committee and a partner at Bergstein in Montevideo, Uruguay, says that in his country, science has been ‘boosted’. He sees Uruguay’s investment in science and scientific investigation as a lesson and legacy of the Covid-19 pandemic.

Quicker drug approval processes, necessitated by the Covid-19 pandemic, are a positive development seen across jurisdictions. Alan Adcock, former Asia Pacific Regional Forum Liaison Officer for the IBA Healthcare and Life Sciences Law Committee and a partner at Tilleke & Gibbins in Bangkok, observes ‘how quickly food and drug administrations [and] health and safety regulators can ease their sometimes very vigilant application process when products need to be registered very quickly for public use’.

Adcock says that in Southeast Asia many of the fast-track procedures set up during the Covid-19 pandemic are being continued for other in-demand pharmaceutical products and medical devices. He says regulators recognised that some of their earlier requirements were no longer necessary. In addition, the digitalisation of the application process has made it quicker, meaning products can be vetted by experienced regulators much faster.

George Wray, former North American Forum Liaison Officer for the IBA Healthcare and Life Sciences Law Committee and a partner at Borden Ladner Gervais in Toronto, says ‘the speed at which we were able to develop vaccines and deal with intellectual property rights was startling’. He believes these learnings could be applied to the overall approval system and help prepare for the next pandemic. ‘We should have a longer-term strategy in place to be able to fast track supplies for pandemics’, he says.

At the onset of the Covid-19 pandemic many jurisdictions lacked supplies of vital equipment, most notably PPE. In the rush to source these products, proper governance and procedures weren’t always prioritised.

In the UK, the Sixth Report of Session 2022–23 of the Department of Health and Social Care (DHSC) 2020–21 Annual Report and Accounts, published in June 2022 by the country’s House of Commons Committee of Public Accounts, states that in the years 2020 to 2021 the DHSC purchased over £12bn worth of PPE through what the Committee called a ‘haphazard purchasing strategy’. It noted that, due ‘to the speed of which the procurement took place and the volumes of PPE ordered, equipment was purchased that did not always meet requirements and much higher prices than normal were paid’.

Empty oxygen cylinders are seen at a COVID care centre set up amidst the spread of the coronavirus disease (COVID-19), in New Delhi, India, 21 December 2021. REUTERS/Anushree Fadnavis TPX IMAGES OF THE DAY

In response to an extremely difficult PPE market where global demand far outstripped supply, the DHSC set up a parallel supply chain officially called a ‘High Priority Lane’ and commonly known as the ‘VIP lane’. This supply chain allowed members of the Houses of Parliament and other senior officials to refer potential PPE suppliers to the DHSC. The process was ruled unlawful by the High Court in January 2022. The DHSC said at the time that ‘all contracts underwent sufficient financial and technical due diligence and the court found that we did not rely on the referral to the high priority lane when awarding contracts’.

Barker says that when the Covid-19 pandemic hit, there ‘was a lot of improvisation going on’, at least in the UK. However, he argues the UK government needed to move fast and says it’s easy to look back now and find fault in the actions of those who were operating in what felt like desperate times.

‘There’s a need, as in many other areas, to bring an independent perspective into those situations’, he adds, ‘for more independent oversight of procurement decisions’. Barker says this oversight could be provided by either a new or existing independent body that isn’t crisis-specific, but which could be ready to support decision making in a crisis. Ileka says transparency could be increased by making all government contracts easily accessible to the public and says that improving whistleblower protections would also help.

The breakdown of global supply chains during the Covid-19 pandemic exacerbated shortages of PPE and other vital equipment such as medical devices and even the ingredients for everyday medications such as paracetamol. Longeval says that producing PPE and other supplies domestically would allow equipment to be accessed quickly and could be an option for future emergencies. She further suggests reserving production capacity with relevant suppliers along the lines of the EU FAB network agreement for vaccines. PPE purchasing decisions should also go through health authorities to assess the standard and quality of the equipment being bought, says Longeval.

Frank Zhou, a former Membership Officer of the IBA Healthcare and Life Sciences Law Committee and a partner at JunHe in Shanghai, says it could be costly to localise all PPE production, with an alternative being to build up emergency stockpiles of vital equipment. He says that supply chains should be flexible with alternative suppliers in different regions to hedge against possible travel or export restrictions. A list of essentials and possible alternatives should be drawn up in advance, he says. Meanwhile, Wray highlights the need to review the contents of any stockpiles on an ongoing basis to ensure supplies remain fit for purpose.

The hybrid conundrum

During the Covid-19 pandemic, many jurisdictions encouraged working from home where possible, which dramatically changed working practices for some people. Employers and employees are now trying to find an appropriate balance between old and new ways of working. In many cases this has resulted in ‘hybrid working’, involving some days in the office and some working remotely. In most jurisdictions these changes haven’t been enshrined in law and working patterns are decided by the employer. However, attempting to apply pre-Covid employment law to current working arrangements can lead to uncertainty.

Pieter Pecinovsky, of counsel at Van Olmen & Wynant in Brussels, says that ‘in practice, there is more remote work […] than before, but we’re still stuck with the same rules as before the Covid pandemic, which is not very ideal’. In Belgium there’s debate over the detail of work from home arrangements, such as whether the employer should cover expenses incurred by remote employees. There have also been disputes over whether employees can claim a legal right to work remotely. Wray says there’s a similar situation in Canada. For him, ‘the employment situation is going to be the biggest and most obvious [area] that needs to be addressed and I don’t think we’ve got it sorted out yet’.

Uruguay, meanwhile, has codified changes to working practices. Bergstein says employers are required to provide the necessary equipment for employees working from home and a remote arrangement must be concluded by mutual agreement and spell out the place and times of work.

Vikram Shroff, former Co-Chair of the IBA Employment and Industrial Relations Law Committee and Head of HR Law at Nishith Desai Associates in India, says nervousness and anxiety at the beginning of the pandemic led to numerous sudden and adverse decisions being taken by employers. He says that ‘if the laws today are updated keeping in mind the overall Covid experience, it would definitely help us be better prepared from a legal perspective’.

Todd Solomon, former Co-Chair of the IBA Global Employment Institute and a partner at McDermott Will & Emery in Chicago, says, ‘there’s a lot of resilience and ability to work from home and get things done remotely which has been game changing in the United States’. However, he argues workplace shutdowns aren’t inevitable in a future pandemic. Businesses may feel less certain that doing so is in their best interests or is absolutely necessary.

Taylor points to the disparities between those who could work from home during the pandemic and those that couldn’t and were forced to put themselves at risk. She says there was no allowance for them having taken that risk or sense that it should be rewarded. Equally the additional burdens that were placed on some people, such as home-schooling while working, were not properly recognised. Taylor says this should be factored into a future response. ‘You expect a lot from people, but how are you going to reward them?’, she says. ‘Solidarity is great, but from a broader perspective looking back, is it fair?’

Society’s balancing act

For many, perhaps the most significant question when approaching any future pandemic will be how societies deal with the possible need to impose restrictions on liberty in order to prevent illness from spreading. During the Covid-19 pandemic, such restrictions most commonly took the form of a lockdown – a legally enforced stay at home notice.

The severity of these restrictions varied across jurisdictions. Leonardo Raznovich, Diversity and Inclusion Officer on the IBA Rule of Law Forum and a legal consultant at LGBTQI+ equality organisation Colours Caribbean, describes restrictions in the Cayman Islands. There, individuals were allocated a weekly slot to visit the supermarket based on their last name and were required to bring an identification card with them on that day.

In contrast, in Uruguay, there weren’t any lockdowns but instead the country adopted the concept of ‘responsible liberty’, where individuals were free to leave their home, but were strongly advised not to. According to Bergstein, most Uruguayan constitutional experts would have said public interest should prevail over that of individuals where health is at stake, making a formal lockdown possible. However, he says that overall, ‘responsible liberty’ worked, largely because ‘the communication was handled superbly well’.

Lockdowns strike a delicate balance between individual freedoms and community action, the exact constitution of which varies across jurisdictions. Wray says that lockdown-related laws shouldn’t be restrictive and must abide by constitutional principles. In Canada, where he’s based, that means the least restrictive law possible should be implemented. In contrast, Zhou believes there’s a greater tolerance of restrictions of freedom in the East compared to the West. ‘The population here […] think that reasonable compromises on personal freedom are a necessary sacrifice for the sake of public health’, he says.

Wray says it’s possible to strike this balance. ‘If we’re committed as a society to the rule of law and more fundamentally to our neighbours, realising we’re in a community of citizens where my right to X can’t trump your right to feel safe and secure and healthy and society’s right [to that], then we can find a balance’, he explains.

For Taylor, human rights principles exist so we can balance personal freedom with community action. They should ensure that, during a crisis, we respond in a way that’s consistent with the rule of law. That response should be necessary, reasonable and proportionate, with protections for vulnerable communities built in. The response shouldn’t ignore these principles because there’s an emergency, she says, as doing so will generate long-term negative consequences.

In Taylor’s view, transparency should be at the heart of any future lockdown. The criteria for implementing one and the decision-making process behind it should be outlined, as well as the mechanisms individuals can use to exercise their rights. She believes the anti-lockdown protests seen across many jurisdictions were a result of people not feeling heard and because the decision-making processes were often opaque.

Additionally, she says there should be procedures in place for consulting with different communities in an emergency. This would ensure that last-minute decisions consider all perspectives and not only those of the people in the room. The consequences of not considering diverse viewpoints or making allowances for minority or marginalised groups during the Covid-19 pandemic were felt across many jurisdictions.

Zhou believes that the Chinese authorities will learn from Covid and take a slightly different approach to future lockdowns, if they’re needed. For example, such lockdowns may be shorter, with fewer restrictions on the delivery of commodities and with people at greater liberty to go out for supplies.

In Wray’s view, imposing restrictions on liberty in a future pandemic could be more difficult. He anticipates more public resistance and believes a more targeted approach would be required. ‘Even though we could be more prepared, we might not be more effective in deploying our preparations’, he says.

Rachael Johnson is a freelance journalist and can be contacted at rachael.editorial@gmail.com