By Franklin De Vrieze, Senior Governance Adviser, Westminster Foundation for Democracy
Post-legislative scrutiny and preparing for the rollback of emergency legislation can reverse losses of democratic space, privacy and civil liberties and prevent these ossifying when the pandemic is over.
In response to the coronavirus (COVID-19) 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.
While emergency measures have been recognised as necessary to uphold collective and individual rights to public health and to life, they often represent a real challenge to the protection of other human rights, such as the right to freedom of expression and of movement, the right to education and right to information, as highlighted by Dr. Dina Melhem, Westminster Foundation for Democracy’s Senior Human Rights Adviser. Moreover, the virus and responses to it also pose a challenge to the principles of inclusion and non-discrimination, with profound impact on gender equality.
While confronting the coronavirus crisis will take extreme measures, protecting democratic space and civil liberties requires extreme caution. Emergency measures need to have a clearly defined time frame. A key risk today is that emergency measures will not be repealed in good time, nor implemented in a proportionate way. This could lead to a permanent shift in power towards the executive and oversight and accountability being weakened. Emergency measures could also be used to suppress human rights and restrict civic space and press freedom.
There could also be shifts in power away from devolved authorities towards the centre. Although health services are often decentralized competencies, the current emergency might reinforce tendencies for recentralization. In federal countries, power dynamics between the centre and regions in tackling the crisis and the role played by the federal and regional parliaments can create a legacy which might last for years to come.
But there are also opportunities. Well-researched evidence and professional skills have been widely recognised as key to tackling the pandemic. Combined with experiences of civic activism, there are ways to turn the risks into opportunities and strengthen accountability and transparency. Furthermore, as WFD’s CEO Anthony Smith has noted, “the likelihood that the restrictions on social contact will be prolonged is a powerful incentive to parliaments (and other institutions) to innovate and strengthen oversight.”
So, how can parliaments uphold a minimum of accountability for the emergency powers which they have granted to the executive? Since most emergency legislation is already passed or is highly sensitive, parliaments can focus on ensuring accountability when it comes to the scope, budgetary consequences, timespan, implementation methods, and unintended consequences of the legislation.
Parliaments have the power to oversee the budgetary consequences of the measures adopted to mitigate the effects of the pandemic. They also have an urgent duty to evaluate to what extent the measures are increasing public debt and/or are likely to expand the role of the state, potentially leading to state ownership of companies and thus greater centralisation of executive power.
What is more, it is important that parliamentarians push for time-bound provisions through review clauses or ‘sunset’ clauses which stipulate how long emergency powers last, when they must be reviewed, and whether they can be renewed. With emergency measures limiting civil liberties on an unprecedented scale, it is crucial that emergency legislation does not continue indefinitely and beyond necessity. For instance, the Norwegian Parliament has adopted an emergency act which is valid for one month and the government has now asked for an extension with one more month. The federal parliament of Canada adopted emergency legislation which remains valid until the end of September; and after the UK government tabled its COVID-19 bill with a timespan of two years, MPs pushed for shortening it to six months, culminating in review clause 98 being incorporated, which foresees six-monthly reporting to and review of the law by parliament. On the other hand, for instance in Hungary, emergency legislation has been adopted without any time limit nor any oversight mechanisms.
Parliaments can take a leadership role in planning for the wrapping up of emergency legislation that restricts human rights and privacy. Limiting its timespan and assessing the budgetary consequences are first step towards the roll-back of emergency legislation.
In the absence of robust scrutiny during the passage of the emergency legislation, it is even more important to identify any unintended effects and to suggest changes where necessary to ensure that harmful provisions are taken off the books. That is why post-legislative scrutiny (PLS) of the emergency legislation which assess its implementation and impact is so important. Many of the emergency powers are enacted through secondary legislation or ministerial decrees. Through PLS, MPs can check if the use of the secondary legislation fits the aims set out under emergency acts.
Through parliamentary PLS inquiries, MPs can insert clauses in emergency legislation that mandate the government to report to parliament on the implementation of the legislation within a set time period. However, parliaments should not limit their PLS to the health and economic emergency. They must also consider the democratic functioning of society and civil liberties.
For example, in many countries, contact-tracing applications on mobile devices are being tested in order to warn people if they were close to an infectious person. Can such new applications of technology be launched while respecting privacy rights? What will be the long-lasting effects of the growth of surveillance by tracking citizens’ movement through mobile-phone data?
The European Parliament, which played a leading role in determining the scope of the General Data Protection Regulation (GDPR), has now stipulated that any use of such apps is not obligatory and that the generated data are not to be stored in centralised databases, which are prone to potential risk of abuse and loss of trust. The parliament also demands that all storage of data be decentralised, full transparency of the (non-EU) commercial interests of developers of these applications, and that clear projections of how the use of contact tracing apps will lead to a significantly lower number of infected people are demonstrated. Interestingly, the European Parliament – after advocacy by the European Partnership for Democracy, calls for public scrutiny and full oversight by data protection authorities – stresses that authorities must fully comply with data protection and privacy legislation. This is a good example of making sure that emergency legislation and subsequent surveillance for the purpose of public health should not compromise the right to privacy or lead to unjustified restrictions on other human rights.
And finally, as national parliaments around the globe attempt to deepen oversight of the implementation and impact of emergency legislation and prepare for future post-legislative scrutiny, they can seek to establish cooperation with information and privacy commissions, ombudspersons, human rights commissions, or other independent oversight institutions which can provide analysis what’s required to protect civil liberties and human rights in times of COVID-19 and beyond. The time to prepare for the roll-back of the emergency powers is now.
Franklin De Vrieze, Senior Governance Adviser, Westminster Foundation