By Franklin De Vrieze, Senior Governance Adviser at WFD and Sarah Moulds, Senior Lecturer at the School of Law, University of South Australia.
How do journalists and citizens find out about these real-world impacts of government’s policy responses to COVID-19? How can we question governments for the decisions they make that are impacting us all, particularly our most vulnerable? One answer is: parliamentary committees. These bodies have emerged as the forum of choice when it comes to providing parliamentary oversight of COVID-19 executive action, particularly in Westminster-inspired parliaments in Australia, New Zealand (NZ) and the UK.
“An overwhelming sense of hopelessness just engulfs me.” This is the kind of feedback the Australian Senate Select Committee on COVID-19 received as part of its scrutiny of the government’s response to the pandemic. The evidence was received from one of the 27,000 Australians stranded overseas without access to government support and unable to return home to their families. Back home, 2.2 million temporary visa holders in Australia (including refugees eligible for protection) are excluded from most forms of government support and many are forced to rely on charities for food and shelter. Similar stories of heartache and injustice in times of COVID-19 exist in other Commonwealth jurisdictions.
Some might say parliamentary committees in Westminster-inspired parliaments can never effectively hold governments to account because they cannot stop laws being passed or decisions being made. The examples below tell a more complex story. The work of committees during the COVID-19 pandemic in Australia, New Zealand and the UK suggests that we need these committees as sources of information, to test and debate policies that impact our lives and rights. They also act as much needed forums for ordinary people to remain connected to their elected representatives.
Australia relies on parliamentary committees to scrutinise proposed laws and identify disproportionate impacts on individual rights. On 8 April 2020, the Australian Senate resolved to establish a Select Committee on COVID-19 to inquire into the federal government’s response to the COVID-19 pandemic.
The committee has been a particularly strong performer when it comes to scrutinising executive decision making and engaging with the community. The Senate COVID Committee works alongside other committees, including the Scrutiny of Bills Committee and the Delegated Legislation Committee, that conduct ‘technical’ legal scrutiny of all proposed laws and regulations against certain rule of law standards, without commenting on the policy merits of these draft laws. As of September 2020, the opposition-chaired, non-government controlled committee has received 463 written submissions, held 35 virtual public hearings, and handled hundreds of questions taken on notice by government agencies. While it has yet to issue a written report, the COVID-19 Committee has already influenced the shape of key legislation (including the laws establishing the COVIDSafeApp and the JobKeeper and JobSeeker support programs) and played a central role in the public debate on the efficacy of key government response to the pandemic.
In New Zealand at the start of the pandemic, a special new parliamentary committee was established, the Epidemic Response Committee, chaired by the leader of the opposition. This committee examined changes to 45 statutes affecting immigration and migration, businesses, organisations, and local governments. These laws gave effect to NZ’s decision to go into an ‘early lockdown’ and effective international isolation at the start of the pandemic, despite a relatively small number of active COVID-19 cases. While in-person parliament sittings were suspended from March 2020 until 26 May 2020, the Committee continued to meet remotely video conferencing technology, providing the only direct forum for democratic scrutiny of executive law-making in New Zealand. As David Seymour MP said on 26 May 2020:
“The committee had the help of some expert witnesses and some very brave members of the public who told their story. The telling of stories and the injection of alternative perspectives on what was going on was very much needed as this country sought to navigate the crisis.”
The Committee was disbanded in May 2020 in favour of a return to the pre-existing parliamentary committee system in New Zealand that focuses on thematic areas of inquiry and is supported by human rights legislation requiring new laws to be accompanied by rights compatibility statements.
Like Australia, the UK parliamentary committee system provides for technical scrutiny committees including a specialist Human Rights Committee that scrutinises every government bill for its compatibility with a range of internationally protected human rights, as well as common law fundamental rights and liberties. The UK Parliament also has a Delegated Powers and Regulatory Reform Committee that is tasked with scrutinising proposals in bills to delegate legislative power from Parliament to another body, including the large volume of COVID-19 related laws that have this effect.
In addition to these technical scrutiny committees, more than 25 separate Standing and Select Committees from within the House of Lords and House of Commons have been involved in scrutinising aspects of the UK’s COVID-19 legislative response. These include: the Home Affairs Committee, which inquired into Home Office preparedness for COVID-19, the Commons’ Justice Committee inquiring into the impact of the pandemic on prison, probation and court systems, the Women and Equalities Committee inquiring into the unequal impact of the COVID-19 pandemic on ‘people with protected characteristics’ under the Equality Act, and the Lords Economic Affairs Committee inquiring into the effects of the pandemic on the labour market. In addition, a special House of Lords Select Committee on COVID-19 was established to consider ‘the long-term implications of the COVID-19 pandemic on the economic and social wellbeing of the United Kingdom’.
The scrutiny experience in the UK – that began with sustained parliamentary committee focus on the legal frameworks authorising the use of executive power and evolved to include a wide range of thematic inquiries into the different policy implications of the Government’s COVID-19 response – has strong parallels with the experiences in Australia and NZ. These experiences suggest that the quality and impact of parliamentary committees’ scrutiny of emergency law-making by the executive often depends on the pre-existing system of committees established within the particular jurisdiction, rather than the work of any individual committee alone.
System of accountability
It is too early to accurately guess the full impact of parliamentary committees in providing robust scrutiny of legislative responses to the COVID-19 pandemic. It may be that the sceptics are proved right, and that ultimately its politics not process that will determine the scope and contours of governments’ responses to the pandemic.
However, this preliminary glimpse at the work of the specialist COVID-19 committees within the Australian, NZ and UK parliaments suggest reasons for hope. These committees (particularly those with non-government chairs or diverse political membership) have demonstrated a capacity to provide independent, publicly accessible analysis of laws and policies, and perhaps most importantly, to engage meaningfully with communities and individuals directly affected by rights-impacting laws.
By working together as part of a broader system of accountability, these committees may well be up to the job of scrutinising governments’ response to COVID-19 – not to mention, improving the quality of law-making in Australia, NZ and the UK in the future.
This is the second blogpost in a new series discussing to what extend COVID-19 emergency powers constitute a threat to democracy. The series emerges from the recent digital conference co-organized by the Institute of Advanced legal Studies of the University of London and Westminster Foundation for Democracy (WFD). This blog is by Franklin De Vrieze, Senior Governance Adviser at WFD, and Sarah Moulds, Senior Lecturer at the School of Law, University of South Australia. To join the conversation on Twitter, use the hashtag #CovidDemocracy.