Four approaches to emergency lawmaking and scrutiny
All around the world, legislatures are struggling to adapt to the COVID-19 crisis—striking a difficult balance between passing bold emergency measures quickly, and upholding the essential responsibility to scrutinize the actions of government.
None of this is easy. The very nature of legislative institutions—places that gather representatives from across a country or region into a single room for extended debates—makes it hard for them to adapt to the pandemic like other workplaces can.
As a result, many legislatures are either shutting down for an extended period, or trying to operate with a small group of mostly senior parliamentarians. But it’s precisely because legislators represent the voices of their diverse communities that care must be taken to ensure all members can take part in legislative proceedings.
Two weeks ago, the Samara Centre took a deep dive into an extraordinary few weeks as the Canadian Parliament passed emergency measures to combat the effects of COVID-19 on the Canadian population. While we ultimately concluded that democratic institutions did not buckle under the pressure, we flagged some concerns: Oversight measures were complicated and incomplete; power was even further concentrated among senior MPs: regional representation was weak, with 79% of MPs coming from Ontario or Quebec; and scrutiny and transparency were very limited. This is not the way that we want Parliament to function throughout what looks to be a much longer crisis, that may prevent many MPs from getting to Ottawa for the foreseeable future.
In this instalment of our Democracy Monitor, we look at how Canada compares to three of our closest constitutional cousins—Australia, New Zealand, and the United Kingdom.
The four Westminster parliaments compared are finding different ways to balance expediency and accountability in their pandemic responses.
The New Zealand model of an opposition-chaired special committee specifically focused on reviewing the government’s response to COVID-19 is a promising way to ensure close parliamentary scrutiny of the extraordinary powers bestowed on governments by emergency legislation.
Given that the pandemic may continue for many months, parliaments must ensure that all MPs have a voice and resume as many functions as possible using either a virtual or a hybrid model.
In the study, we look at how national parliaments were convened to pass emergency legislation, which parliamentarians got to participate, and what measures have been put in place to keep tabs on government as the crisis marches on.
Show your work: MPs need to debate bills in a public forum.
Time to research: Legislators must have sufficient time to scrutinize emergency measures, even if that means showing bills in advance of debates.
Democracy is an essential service: Emergency sittings alone can’t provide ongoing scrutiny; Opposition members and government backbenchers require regular opportunities to question Ministers to allow for ongoing oversight and accountability.
Use 2020 technology: Hybrid or fully virtual committees, question periods or other public debates between members must be used to supplement in-person meetings.
Special powers may need special oversight: An all-party emergency committee could be created to allow for scrutiny of extraordinary government powers.
Invite the Opposition to the table: Opposition members should have a meaningful role in scrutinizing the government’s emergency response.
The Australian Parliament had adjourned for a mid-session break on March 5, but was recalled March 23 and again April 8 for one-day sessions to approve emergency COVID-19 measures. As with Canada, the number of Members attending was limited to permit social distancing. Yet even though Australia’s House of Representatives has fewer than half the Members (150) of Canada’s House of Commons (338), there were still 88 Members present on March 23 and 53 Members present on April 8—almost triple the number of Canadian MPs present to pass emergency measures.
Besides including more Members, the Australian Parliament also maintained more elements of parliamentary procedure when approving its emergency laws and relief programs. Although prior talks took place between the government and various stakeholders, the bills were not presented to Parliament as a finished product to be immediately ratified. Instead, while the debates were brief, members of both the House and Senate discussed each bill and proposed amendments, with the first emergency bill actually amended by Senators.
Although Australia’s Parliament engaged in more open and transparent scrutiny of the government’s COVID-19 response legislation, it has not implemented any mechanisms to allow ongoing scrutiny. Unless otherwise recalled, the Parliament is adjourned until August.
On March 19, the New Zealand Parliament went into recess to reduce the risk of COVID-19 transmission. It was then recalled for an emergency session on March 25, the day before a national lockdown began. Fewer than 20 of the Parliament’s 120 Members were present to approve the two pieces of emergency legislation to enable the government’s health and financial responses to the crisis. As with Canada’s emergency sessions, prior cross-party negotiations allowed the bills to be introduced and passed through all stages without substantive debate or proposed amendments. The Parliament is now adjourned until at least April 23.
At the March 25 emergency session, New Zealand MPs also established an Epidemic Response Committee to review and report on the government’s management of the pandemic. It is chaired by the Leader of the Opposition, with members from all five parties. The committee meets three times a week via Zoom videoconference to receive testimony from Ministers and experts. The public can watch directly via Zoom, as well as livestreams on social media platforms and TV and radio broadcasts. Some Australian politicians now want to create a similar mechanism for their parliament.
In addition to the Epidemic Response Committee, a special order adopted by Parliament on March 19 allows other select committees to continue to meet via Zoom while the main chamber is adjourned. The sessions can be observed by the public, and are allowing MPs to make progress on other legislative and policy work despite the pandemic.
The UK Parliament continued to sit for two weeks after the global COVID-19 pandemic was declared on March 11. While some modifications were instituted to facilitate social distancing, this continued operation meant that the UK adopted its emergency legislation while maintaining many more elements of usual procedure than the other three jurisdictions. Most notably, the Government tabled its Coronavirus Bill on March 19 but did not begin the debate until March 23, allowing MPs considerable time to review its provisions.
The bill was quickly criticized for the scope and duration of the emergency powers granted to the Government, prompting Ministers to introduce their own amendments requiring regular six-month reviews of the provisions during its passage by the House of Commons. All told, the bill was debated for one day in the Commons and two days in the House of Lords. After passing the bill through its final stages on March 25, the UK Parliament adjourned until April 21.
While not fully finalized, on April 21 the UK House of Commons is set to approve plans to move to a hybrid physical and virtual model when it returns on April 21. Members will be able to participate in Prime Ministers’ Questions, Urgent Questions, and Ministerial statements via videolink while those being questioned are in the chamber. However, further discussions are required before other elements of debates or voting can move online.
Emergency lawmaking: Parts I and II
Canada has gone through three rounds of emergency lawmaking since the coronavirus pandemic began. The first two, which we wrote about in detail in the first instalment of our Democracy Monitor, saw MPs and Senators abandon usual parliamentary procedure to quickly approve the measures. Rather than first introducing the bills and debating their provisions in public, the details were negotiated by small groups of MPs meeting behind closed doors and then presented to Parliament to ratify. This approach allowed the bills to pass very quickly, but meant that most MPs and virtually all Senators had no input into their contents.
The first case of emergency lawmaking came on March 13 at the end of a regular sitting week, after which Parliament adjourned to help slow the pandemic. However, it became clear that additional legislative measures were needed and so an emergency session was called for March 24 and 25. The parties agreed that just over 30 MPs would attend (less than 10%of the total), divided in proportion to party standings and with preference given to MPs located near Ottawa. While allowing for social distancing, this limiting of the number of MPs meant that several regions of the country were underrepresented—or not represented at all—and that the parties controlled which MPs were present.
Emergency lawmaking: Part III
Parliament was recalled for yet another round of emergency law-making on April 11. The same pattern was followed, with the details of Bill C-14 hammered out behind closed doors and MPs and Senators expected to ratify the compromises reached. As before, just three dozen members attended to allow for social distancing. However, as the chart illustrates, the MPs who participated in this sitting were even less geographically representative than in the previous sitting.
When the Canadian Parliament adjourned on March 13, no measures were adopted to allow for ongoing scrutiny by MPs and Senators. At the session on March 24 to 25, MPs agreed to allow the House of Commons’ Committees on Health and Finance to meet via teleconference to scrutinize the government’s response to the pandemic. They also required the Minister of Finance to report to the Finance Committee every two weeks on how he is utilizing the emergency financial powers granted under the COVID-19 Emergency Response Act.
On April 11, four more Commons committees and two Senate committees were authorized to meet by teleconference—although only to examine the pandemic and its impacts. The Commons’ committee meetings held so far demonstrate the technical challenges of offering simultaneous translation in a teleconference format. However, the meetings have still greatly expanded Parliament’s capacity to review the government’s actions in real-time.
There are still changes underway. The Government House Leader Pablo Rodriguez has written to House of Commons Speaker Anthony Rota asking him to explore options for holding virtual meetings. The Speaker believes that such a system could be in place by mid-May. On April 11, MPs tasked the Procedure and House Affairs Committee to explore how the Commons can best adapt to COVID-19, including potential virtual sittings. In the meantime, the Commons convened as a skeleton crew again on April 20, to debate options for carrying on Parliamentary work while observing social distancing. The likely approach will create a Special Committee on the COVID-19 Pandemic, which will host several Question Period-like accountability sessions each week, including some by teleconference. Watch for our thoughts on the topic in the next Democracy Monitor.
Comparing the systems, based on values
In comparing pandemic responses, all our fellow Westminster parliaments are clearly muddling along, and trying to feel their way to an appropriate balance between expediency and accountability. On particular dimensions of the problem, though, some parliaments are holding their own, while others are letting critical principles of parliamentary democracy slip—at least initially.
Transparency of government actions
The UK Parliament conducted the most thorough scrutiny of its Government’s emergency legislation. The proceedings particularly showed the benefit of publicly disclosing the legislation well before it is debated. By contrast, the emergency bills in the other jurisdictions were not made public until the day they were debated and passed, meaning that no public pressure could be mounted in response to their provisions.
However, this approach meant that the UK Parliament continued to meet despite public health warnings, which made some MPs, and other observers uncomfortable. Indeed—the 83 year-old Lord Speaker had to stop attending sessions of the House of Lords on medical advice. This points to the need for legislatures to find a way to publicly introduce bills in advance of future emergency sessions even when parliaments are not sitting.
While perhaps facilitating consensus, the Canadian and New Zealand approach of introducing legislation only after all parties have already agreed to the provisions hinders transparency. Only those individual members and stakeholders present for the negotiations or directly consulted by the parties have input, increasing the odds that important details will be missed.
Both Australia and the UK had amendments attempted and made in public, which also forces politicians to publicly express which legislative proposals they support and which they oppose.
Participation of Members
Given that it was still sitting as usual, the UK had the greatest participation of Members in the passage of its emergency legislation. But Australia also managed to have a substantial portion of its Members present for the two emergency sessions, in both absolute and relative terms.
Overall, the Canadian Parliament had the worst performance on this front—relying on a small and exclusive group of MPs to pass the emergency measures and excluding Senators from having any meaningful influence on the legislation adopted. While New Zealand had fewer politicians present, it still came ahead of Canada in proportionate terms. Moreover, New Zealand’s proportional electoral system places a greater priority on party representation than the constituency-focused system in Canada, which prizes regional representation.
Australia’s choice to suspend its Parliament for five months clearly sets the lowest bar for ongoing scrutiny. Conversely, New Zealand’s decision to create an Opposition-chaired committee that meets virtually three days per week to scrutinize all aspects of the Government’s pandemic response so far appears to be the most promising model for scrutinizing enormous powers granted to the executive during the pandemic. Moreover, the UK and New Zealand Parliament have allowed other select committees to meet during the pandemic, ensuring that other parliamentary studies are not completely sidelined.
Canada is catching up, with six committees now meeting remotely to examine matters related to COVID-19. But even the committee-focused approach taken by these three parliaments still undermines the ability of all members—and particularly those not part of New Zealand’s Epidemic Response Committee—to take part in scrutiny.
All of these responses are preliminary. More changes are likely, and we don’t yet know what they will look like.
Both the Canadian and UK parliaments are studying how to move more of their proceedings online. The UK’s movement toward a hybrid system, which combines some in-person parliamentary activity by a small number of MPs while increasing opportunities for Members to participate remotely—is worth watching. It may ultimately offer the best balance between limiting travel and maintaining social distancing on the one hand, and permitting full participation of Members on the other.
We’ll provide more thoughts on the pros and cons of a virtual Parliament in the next Democracy Monitor—along with a close look at how Canada’s provincial and territorial legislatures have adapted.