Julian R Murphy: Stopping the unstoppable – Executive accountability in a time of pandemic

The idiom “desperate times call for desperate measures” derives from one of Hippocrates’ Aphorisms, in which the ancient Greek physician warned: “For extreme diseases, extreme methods of cure, as to restriction, are most suitable.”Legal responses to extreme diseases – indeed to all existential threats – adhere to Hippocrates’ advice, typically by the extreme concentration of power in the Executive. This general observation, however, should not obscure the many different ways in which emergency powers can be conferred on the Executive and the different ways of maintaining executive accountability in a state of emergency.

Ferejohn and Pasquino have formulated a typology of emergency powers. In essence, there are two genera of emergency powers – the constitutional model and the legislative model – each of which encompasses a number of different, more specific, species. Ferejohn and Pasquino observe that the constitutional model, deriving from the Roman dictator who assumes absolute power for so long as the emergency persists, has largely fallen out of favour in the last half century. Some national responses to COVID-19 confirm this observation. Taiwan, for example, has so far avoided the issuance of emergency decrees under its Constitution in response to COVID-19, instead relying on the legislative process (explained further below). Similarly, both Nepal and South Korea have emergency powers in their Constitutions, but to date have addressed COVID-19 using the existing Infectious Disease Control Act (Nepal) and the Infectious Disease Control and Prevention Act (South Korea).

Thus, there is no reason to doubt Ferejohn and Pasquino’s suggestion that modern states prefer the legislative model of emergency powers, even when faced with such unprecedented threats as COVID-19. The purpose of this post is to interrogate the legislative model of emergency powers. In particular, the aim is to illustrate the different degrees of political and legal accountability for emergency executive action, depending on the variant of the legislative model that is adopted.

The legislative model of emergency powers

In broad terms, the legislative model of emergency powers operates by using ordinary legislation to confer extraordinary powers on the Executive. The benefits inhering in such a model are multitude. First, the legislative process – that is, policy formulation, legislative drafting, parliamentary (or congressional) debate and voting – is designed to maximise deliberation and, thus, improve policy-making as compared to the issue of unilateral emergency decrees. Secondly, the formulation of emergency powers by the Legislature subjects them to the tempering force of political accountability. Thirdly, the conferral of executive powers through legislation generally allows the judiciary to police the limits of those powers.

          The extent to which each of the above benefits are realised, however, depends upon the species of the legislative model that is adopted. In particular, there are significant differences in the accountability achieved when emergency legislation is drafted prospectively (that is, in a time of relative stability in anticipation of some unknown emergency) as opposed to ad hoc legislation drafted contemporaneously, that is, during an emergency.

          Before assessing the relative advantages and disadvantages of prospective and contemporaneous emergency legislation it must be observed that the two approaches are often complementary. For example, Taiwan’s response to the severe acute respiratory syndrome (SARS) outbreak in 2003 was initially conducted under the previously drafted the Communicable Disease Control Act. It was only after more specific measures became necessary that Taiwan enacted the Provisional Act Governing the Control and Relief of Severe Acute Respiratory Syndrome (SARS). Similarly, Taiwan’s response to COVID-19 was initially rooted in the same Communicable Disease Control Act before it became necessary to pass a further statute granting the government greater powers, the Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens.

The benefits of the legislative process

Emergency laws drafted prospectively are usually more carefully considered and better designed than legislation drafted urgently during the course of an emergency. This is because laws drafted prospectively will usually have been improved by an elaborate process of policy formulation, legislative drafting, parliamentary scrutiny (usually in multiple legislative chambers), parliamentary debate, committee review, amendment and, ultimately, parliamentary vote. Jeremy Waldron labels the benefits of this process “legislative due process”. Contrariwise, ad hoc emergency legislation will often be drafted in haste, as occurred in the United States House of Representatives’ attempts to respond to COVID-19, which have required repeated amendments and technical corrections of proposed legislation. The benefits of the legislative process will also be limited where ad hoc legislation is enacted in haste, often without committee review and with minimal debate and few amendments.

Nevertheless, ad hoc legislation can still offer a degree of meaningful deliberation, as occurred with the United Kingdom’s Coronavirus Act. While the passage of the legislation was undoubtedly rushed, it was amended at the committee stage to introduce an important oversight mechanism whereby the emergency measures will return to parliament for a vote every six months.

Political accountability

It seems likely that emergency laws drafted prospectively in periods of relative stability will not attract the same level of contemporaneous public scrutiny as laws drafted during an emergency. By contrast, one can imagine that a legislator considering ad-hoc emergency legislation will be somewhat more sensitive to the public’s views in the knowledge that the legislator will have to answer to the public at the polls in the not-so-distant future. Thus, one can see that political accountability is likely to operate more effectively to moderate ad hoc emergency legislation than prospective emergency legislation.

One example of political accountability affecting ad hoc emergency legislation can be seen in Australia’s action on the highly sensitive issue of releasing prisoners due to their special vulnerability to COVID-19. Rather than leave this to controversial issue to executive order (as has occurred in some parts of the United States), Australian States have passed emergency legislation allowing for the systematic release of certain prisoners. That legislation includes important safeguards tending against the release of domestic violence offenders, which safeguards were likely a direct reflection of Australian public concern about prisoners who fall into this category.

There is also a mechanism by which prospectively drafted legislation can ensure parliamentary accountability in a time of crisis – namely, by drafting statutes to confer emergency executive powers subject to near-contemporaneous legislative approval. An example – albeit constitutional rather than legislative – is Italy’s use of presidential “decree laws” in response to COVID-19, which decree laws must be enshrined in regular legislation by Parliament within 60 days or they will become invalid ab initio. Such a mechanism forces the Legislature to share political responsibility with the Executive during an emergency, thus increasing political accountability for executive action.

Legal accountability

A stated advantage of the legislative model is that the legislative conferral of power tends to facilitate legal accountability, usually by the availability of judicial review of executive action purportedly taken pursuant to the statute. For example, administrative action taken under Belgium’s COVID-19 special powers legislation is amenable to review at the Administrative Litigation Section of the Council of State.

          Of course, judicial oversight will only be available so long as courts remain open and insofar as it is not ousted by legislative provision. In Germany, many measures taken in response to COVID-19 have been achieved as “general administrative acts”, rather than regulation, under Infection Protection Act. The practical consequence of this has been a limitation of the availability of judicial review, because general administrative acts can only be challenged between individual parties, not generally.

Nevertheless, the values of preserving the availability judicial review of executive action should usually be obvious to the Legislature when enacting emergency legislation. It is to be hoped that legislators recognise that “judicial review in a time of crisis is a feature, not a bug” – as was recently celebrated after the Israeli High Court’s interim orders regarding COVID-19 regulations.

Conclusion

This post has been, for the most part, optimistic. Legislative models of emergency powers generally preserve a modicum of both political and legal accountability. There is, however, one obvious limit to ad hoc emergency legislation that should be noted: ad hoc legislation can only be passed while the legislative body is in session. COVID-19 has revealed the difficulties of maintaining legislative functions during a pandemic. In Australia and New Zealand, federal parliament has been suspended until August and May respectively. In Germany, the difficulties of keeping the Bundestag operating through the pandemic have been well documented. It remains to be seen whether these difficulties will encourage nations to revert to more “efficient” constitutional models of emergency powers (where available) or whether – as may be hoped – legislative bodies may move online.


Julian R Murphy is a PhD student at the University of Melbourne, School of Law.