No quarantine for democracy: How parliaments can uphold accountability for the emergency powers granted to the executive

As Westminster gets virtual Franklin De Vrieze of the Westminster Foundation for Democracy provides an overview of how a number of parliaments are adapting to unprecedented challenges associated with emergency powers, social distancing and executive scrutiny.

In response to the Coronavirus pandemic, over 100 countries have passed emergency laws or declared states of emergency. While science gives a strong justification for controlling the rapid spread of the coronavirus by limiting the movement of people, closing businesses and enforcing social distancing, there is a serious risk of creating an unintentional wave of authoritarianism by curtailing civil liberties on a massive scale.

Several countries have taken unprecedent measures to monitor citizens by tracking their movement through cell-phone data. It has been widely reported how the Hungarian parliament passed a law allowing the government to rule by decree, suspend existing laws, authorize penalties of up to five years’ imprisonment for spreading fake news, suspend parliamentary oversight, and permit only the Prime Minister to determine an end to these measures.

While confronting the coronavirus crisis will take extreme measures, protecting the democratic space and civil liberties requires extreme caution. Emergency measures need to have a clearly defined time frame. The danger is that the temporary can become permanent. There are clear calls that privacy rights should be respected. Surveillance for the purpose of public health should not compromise the right to privacy or lead to unjustified restrictions on other human rights. In times of crisis, there is a clear risk that checks and balances are ignored in the name of the efficiency of the executive power.

Parliament has the constitutional duty to guarantee checks and balances. However, as gatherings of parliamentarians and parliamentary staff during regular proceedings risk further contamination and the spread of the virus, parliamentary meetings in many countries have been postponed or reduced, the number of parliamentary questions limited, debates restricted to the immediate coronavirus response and discussions on all other topics delayed, as documented by the Inter-Parliamentary Union. More than two billion people live in countries where parliaments have been suspended or restricted under coronavirus emergency measures. As the pandemic continues, parliaments around the world are changing their practices with a view to continue exercising oversight and ensure accountability, including through remote Committee meetings, creating special committees, initiate remote plenary sessions, ensure virtual parliamentary question time, etc.

The UK House of Commons has agreed procedural measures to allow select committees to meet remotely and participate in proceedings through email, conference calls, and digital conferencing. Some select committees are recording their virtual evidence sessions and posting them online afterwards while others are broadcasting live. Video conferencing of question time, urgent questions and statements are scheduled after the Easter recess. The first virtual plenary sessions took place in Wales, the Maldives and in other parliaments.

The New Zealand Parliament appointed a new Epidemic Response Committee  to scrutinise the government’s response to the epidemic while the House is not sitting. In the Riksdag (Sweden) and in the Dail (Ireland), attendance in plenary sessions is reduced as a result of an agreement between parties and/or the Speaker – something that also happened in the UK House of Commons. The German Bundestag has reduced the required quorum for business. The US Congress established the Pandemic Response Accountability Committee, a new independent oversight body created to ensure that the allocated funds are not misspent. Looking beyond the procedural innovations, the substance of the parliamentary work has shifted as well. Some parliaments have cemented their power to reverse or review the emergency powers by inserting specific deadlines in the emergency legislation via sunset clauses.

An interesting example is Canada, where the parliament adopted emergency legislation to respond to the pandemic and to assist millions of Canadians who have lost their livelihoods. Government and opposition have agreed a sunset clause to limit the government’s ability to raise taxes without parliamentary approval until the end of September. In addition, any spending under these measures will be scrutinized by the public accounts and finance committees and the Auditor General. The finance committee also gains the ability to recall parliament within 48 hours if anything egregious is found. The health committee will be meeting to scrutinize the government’s activities with respect to COVID-19.

So, how can parliaments uphold a minimum of accountability for the emergency powers which they have granted to the executive? Best practices across different countries, as documented by the Commonwealth Parliamentary Association (CPA), suggest that emergency legislation remains subject to a minimum of debate and scrutiny, that the technical quality of the legislative texts is maintained, that there are minimum provisions regarding stakeholders and affected organisations providing input, that legislation remains proportionate in its response and that fundamental constitutional rights are not permanently jeopardised. However, parliament will face challenges related to the time-pressure to generate and approve the emergency legislation and the lack of expertise or limited access to experts due to social distancing measures.

Therefore, it is important that parliamentarians push for time-bound provisions within a bill through sunset clauses. With emergency measures limiting civil liberties on an unprecedented scale and centralising power in the executive, it is crucial that emergency legislation does not continue indefinitely and beyond necessity. For instance, the Norwegian Parliament, Storting, adopted an emergency act which is valid for one month and which can also be repealed at any given time.

Because of its exceptional nature, emergency legislation needs to be subject to Post-Legislative Scrutiny. In the absence of robust scrutiny during the passage of the legislation, it is even more important to identify any unintended effects of emergency measures and to suggest changes where necessary. As input into their own Post-Legislative Scrutiny inquiries, MPs can insert a clause in the emergency legislation, making it mandatory for the government to report to parliament on the implementation of the legislation within a set time-period according to pre-defined criteria. These criteria need to include the consequences of the legislation for vulnerable groups, minorities, and the effects on gender equality. We suggest to mandate additional transparency measures related to the COVID-19 crisis, reconfirming existing commitments to the Open Government Partnership (OGP).

Finally, in times of emergency, the interest of the country as a whole, rather than party-politics, should guide parliamentary operations as much as possible. The UK’s Westminster Parliament has used its tradition of cross-party consultation (as for instance in UK APPGs – all party parliamentary groups) to find consensus on a mixed “hybrid” system of virtual and in-person parliamentary proceedings. Recent developments in the parliaments of Canada, Ecuador, South Africa, Timor-Leste, New Zealand and elsewhere have indicated how constructive engagement across party-lines can contribute to a swift national response while ensuring accountability. In this way, the pandemic does not require a quarantine for democracy.