https://orcid.org/0000-0002-5616-9505
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ABSTRACT
What happens in a state of emergency that is prolonged and unrelated to security with respect to the powers afforded to or used by the executive, checks and balances, and cooperation between the government, parliament, and sub-national authorities? This article investigates the variation in ‘executive aggrandisement’ (a temporary reduction in influence and oversight capacity of formal institutions vis-à-vis the executive) during the COVID-19 pandemic in six parliamentary democracies. We theorise that this variation can be in part explained based on path dependence. We explore how pre-pandemic levels of executive dominance and policy centralisation affect executive aggrandisement during the 2020–2022 emergency across our sample of countries. We show that Canada and Germany experienced little to no aggrandisement. In France, Israel, Italy, and the United Kingdom, government rule increased throughout the crisis at the expense of parliament and sub-national authorities. In line with our expectations, we find that most facets of the process of executive aggrandisement in a state of emergency can be interpreted in view of prior institutional arrangements. The outlier elements can be explained by considering circumstantial factors. Our evidence contributes to the literature on the political consequences of COVID-19 by filling some gaps regarding the roots of executive aggrandisement.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 We refer to the division of authorities immediately below the national ones as “sub-national authorities.” This can be, for instance, the provinces and their lieutenant governor in Canada, the Länder (states) and their Ministerpräsident in Germany, or the countries of Northern Ireland, Scotland, and Wales and their First Minister in the United Kingdom.
2 “French PM Édouard Philippe and his government resign as Macron prepares cabinet reshuffle,” France 24, 3 July 2020. Last accessed: 21 November 2023.
3 See Ginsburg and Versteeg (Citation2021) for a discussion of academic insights on security-related emergencies; Bar-Siman-Tov et al. (Citation2021) explore a similar question in relation to judicial review in Israel.
4 In the last decade, the literature has scrutinised long-lasting shifts in cases like India and Turkey (see Khaitan, Citation2019; Citation2020).
5 Among these, Bolleyer and Salát (Citation2021) define executive aggrandisement in the context of the Covid emergency as ‘a (temporary or permanent) weakening of fundamental institutional checking mechanisms in place to assure executive accountability within democracies through means of legislation and legislative reform’ (p. 1104).
6 Cox and Weingast (Citation2018) observe that ‘horizontal accountability should reduce policy and crony uncertainty by limiting the chief executive’s scope for unilateral action’ and that ‘unconstrained rulers have enormous structural advantages […] and can corrupt the process, should they wish’ (p. 284).
7 We cons France as a parliamentary system, given the confidence-based relationship between the cabinet and the National Assembly.
8 The score covers several facets of executive power in parliamentary systems, including the degree of government control of the plenary agenda, the presence of restrictions on the introduction of private members’ bills, the ability of the government to truncate the parliamentary debate, the prerogatives of the prime minister, etc. We detect a consistent pattern using another executive dominance score presented by Tsebelis (Citation2009).
9 For example, Lupo (Citation2019) points out that Italian governments have amplified their influence on the law-making process by relying on increasingly longer and more complex decree-laws and delegation laws that allow the cabinet to rule by legislative decree. See also Lupo and Piccirilli (Citation2021). For Israel, Rahat (Citation2018) states that ‘Israel has experienced both failed and successful attempts to reform its democratic institutions in the seventy years since its founding’ and that ‘these reforms injected doses of majoritarianism and personalism into the system’ (p. 382). Relatedly, Mahler (Citation2018) stresses the growth of “unwritten” constitutional norms and their impact on day-to-day Israeli politics.
10 In Italy, some policy discretion is granted to the individual regions. However, public policy matters are still highly influenced by the central government that handles the allocation of funds to local authorities. Additionally, the executive retains a constitutional prerogative to take over the sub-national jurisdictions.
11 According to art. 92 of the Constitution Act, 1867 (exclusive powers of the provincial legislatures), the regional authorities retain discretion over public health matters.
12 This document was the successor of the War Measures Act, which first appeared at the start of WWI. The invocation of such an act would have allowed the executive to issue ordinances for the preservation of public order. While these would have gone into effect immediately for a period of thirty days, the legislature would have been involved in at least two ways: by endorsing or revoking the state of emergency and by voting on the ordinances issued by the government.
13 In March 2020, parliament adjourned after expediting legislation authorising the executive to spend without prior parliamentary approval for three and a half months. In August, PM Trudeau prorogued parliament ‘to allow the government to adjust its strategy to account for the Covid-19 pandemic,’ a move criticised by the opposition (Flood & Thomas, Citation2021); Canadian House of Commons Debate 20 April 2020 (Last accessed: 21 November 2023); Had the Emergencies Act been employed in the early stages of the pandemic, a joint parliamentary committee would have been established automatically by virtue of invoking the act.
14 LOI n° 2020–290 du 23 mars 2020 d'urgence pour faire face à l'épidémie de covid-19. Before 23 March 2020, the emergency was addressed with ordinances issued by the Health Minister. On 16 March 2020, the government issued a decree imposing a national lockdown, citing the doctrine of “circonstances exceptionnelles” (Decree n. 2020-260); The existence of the Defence Council, which first appeared in 1906, is enshrined in article 15 of the French Constitution. After the outbreak of the Covid pandemic, the “Public Health Defence Council” was created to handle the health crisis. The committee includes the head of state, the prime minister, and five ministers (Health; Armed Forces; Interior; Economy; Labour) (French Presidency, last accessed: 21 November 2023).
15 Article 74 normally grants the power to issue ordinances to the state authorities but not to the federal Health Minister.
16 Amended twice, the first time in March 2020 and the second time in November 2020 (Drittes Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite). See Kaiser and Hensel (Citation2021).
17 Also known as the “necessary and proper” clause.
18 These replaced the so-called “mini” Corona Laws, adopted in June 2020.
19 The local governments provide health services, however, local authorities function through by-laws approved by the Interior Ministry.
20 Bull (Citation2021) described the pandemic as ‘the greatest challenge of any peacetime Italian prime minister’ (p. 149).
21 Civitarese Matteucci et al. (Citation2021) also refer to this procedure as a “PM Decree;” The DPCM is a type of ministerial decree that would normally amount to secondary legislation. Before the pandemic, this instrument was used for intra-cabinet regulations.
22 The unrestrained delegation to the executive is similar to the basket clause in Israel; A DPCM issued on 22 March 2020 established the first national lockdown outside of China.
23 Although originally envisioned as an emergency procedure, decree-laws have progressively become an ordinary procedure for the making of primary legislation (see Vedaschi, Citation2022).
24 “COVID-19 and the use and scrutiny of emergency powers,” House of Lords Select Committee on the Constitution. See also the Hansard Society’s Coronavirus Statutory Instruments Dashboard for a full list of Covid-related SIs introduced between 2020 and 2022. Last accessed: 21 November 2023.
25 Cormacain (Citation2020) also argues that confining the Covid-related emergency measures to one legal text (Coronavirus Act) would have facilitated abrogation at the end of the crisis. It is also important to note that secondary legislation is nonetheless subject to judicial scrutiny, and it can be invalidated by the courts.
26 The Secondary Legislation Scrutiny Committee’s reports are available here. Last accessed: 21 November 2023.
Additional information
Notes on contributors
Francesco Bromo
Francesco Bromo is a Ph.D. Candidate at Texas A& M University.
Paolo Gambacciani
Paolo Gambacciani is a Postdoctoral Researcher at the University of Bologna.
Marco Improta
Marco Improta is a Postdoctoral Researcher at the University of Siena.