ABSTRACT
States around the world have struggled to come up with proper legislative responses to the 2019 novel coronavirus pandemic. This editorial introduces the special issue on ‘Global Legislative Responses to Coronavirus’ and offers an overview of its rich array of articles. It follows on from the previous special issue on legislatures in a time of Covid-19.
1. Introduction
It may seem a ridiculous idea, but the only way to fight the plague is with decency.
This is one theory advanced by Albert Camus in his novel about a fictional pandemic.Footnote1 His was a broader point about human decency in general, but does ‘decency’ work as a criterion for good law-making in a pandemic?
States around the world have struggled to come up with the proper legislative response to the 2019 novel coronavirus pandemic.Footnote2 Although each state has taken a different response, common issues have emerged. How best to regulate the emergency and the medical response? Do we need absolute scientific certainty before taking protective measures or can we proceed without that evidence? Are ‘normal’ laws enough, or is there a need for emergency measures? Are legislative measures within the constitution or are they stretching it to breaking point? How can we ensure that emergency legislative responses to the Covid-19 crisis do not permanently undermine the democratic constitutional order? This special issue on ‘Global Legislative Responses to Coronavirus’ is devoted to examining these questions. It follows on from the previous special issue on legislatures in a time of Covid-19.Footnote3
2. An overview of this special issue on global legislative responses to coronavirus
In ‘Keeping Covid-19 emergency legislation socially distant from ordinary legislation: principles for the structure of emergency legislation,’Footnote4 Ronan Cormacain offers general guiding principles for promoting proper legislative responses to Covid-19. Starting with well-accepted principles that emergency laws should be limited, time-bounded and proportionate to the nature of the emergency, Cormacain develops the novel idea of socially distancing emergency legislation from ordinary legislation. He offers specific structural techniques to make emergency laws separate and distinct from ordinary laws, and to reduce the chances of them being used for periods and purposes beyond their initial remit. These include using a single legislative vehicle for emergency laws; using non-textual amendments; avoiding the standard mosaic approach to making new laws; using sunset clauses; expressly stating these laws temporary nature; specifically limiting their use to the emergency; and giving them a title which indicates their emergency nature.
In ‘COVID-19 legislation in the light of the precautionary principle,’Footnote5 Klaus Meßerschmidt examines the application of the precautionary principle to Covid-19 legislation, and argues that the precautionary principle, often discussed in the contexts of environmental policy or health risks, could also be beneficial for thinking about the current pandemic. Meßerschmidt acknowledges criticisms that the precautionary principle could serve as a blanket justification for extreme and arbitrary interventions in civil liberties, or that it conflicts with the rule-of-law obligation to evidence-based legislation. Yet, he argues that the precautionary principle does not supplant the principle of proportionality, and that it does set limits to risk-related legislation, while enabling restrictions in the absence of scientific consensus. He, therefore, argues that the academic debate about the precautionary principle can help to maintain (or at least restore) rationality and prudent risk tradeoffs even in times of emergency Covid-19 legislation.
In ‘Reinventing the wheel … and rolling over fundamental freedoms? The Covid-19 epidemic in France and the “State of Health Emergency”,'Footnote6 Sébastien Platon analyses the French Parliament’s response to coronavirus. In its response to the Covid-19 crisis, the French Parliament has adopted an Act creating a new emergency powers regime, named ‘state of health emergency’. Platon’s contribution aims at analysing and providing a critical appraisal of this regime. He argues that the creation of a new regime was not necessary, and that it would have been wiser to amend the existing state of emergency. Platon further argues that the new regime is imbalanced in that it confers important powers to the executive with limited checks and balances.
In ‘Quasi-state of emergency: assessing the constitutionality of Ghana’s legislative response to Covid-19,’Footnote7 Maame Efua Addadzi-Koom offers a critical evaluation of the Imposition of Restrictions Act, 2020 (IRA) adopted by the parliament in Ghana. She assesses the constitutionality of the IRA, evaluating both the validity of its law-making procedures and the substantive constitutionality of its legislative provisions. She argues that the IRA stands unconstitutional from the very beginning of its intended existence, and that its continued existence is challengeable under the 1992 Constitution of Ghana. The paper concludes that there is still an opportunity to right the wrong.
In ‘Emergency Powers in a Hybrid Regime: The Case of Hungary,’Footnote8 Csaba Győry and Nyasha Weinberg explore the legislative response in Hungary. Győry and Weinberg review Hungary's emergency law, and the decrees passed under the emergency authorization to date, to ask how Hungary's actions since the beginning of the Covid-19 crisis should be understood. They develop this further by looking at the ending of the official emergency laws and the introduction of what they term the new sub-constitutional emergency regime (where the emergency laws are replaced with ‘proper’ legislation). The authors reach some counter-intuitive and rather depressing conclusions in their paper. Initially, Hungary used the authoritarian playbook with excessive and unbound executive powers to be used in the emergency. But in practice they showed relative restraint and the country did not tip over into a fully autocratic regime. The authors suggest that the eventual ending of the emergency regime was not out of any reason of high principle, but essentially because with their large majority in Parliament, public support, and control over most of the state institutions, the governing party did not need any additional powers. They describe Hungary as still being a prerogative state, and that the pandemic can mask its arbitrary measures.
Finally, in ‘Incentivising employment during the COVID-19 pandemic,’Footnote9 Phil Lord focuses on responses to unemployment caused by the pandemic, analysing the two main legislative responses adopted by North American governments: a broadening of access to (un)employment insurance (EI) and the adoption of payroll subsidies for companies. It comparatively and critically assesses these two solutions, to eventually propose an alternative plan. Under this plan, access to EI would be broadened to cover those not traditionally covered by it, such as self-employed workers, contract workers, and those caring for a family member sick from Covid-19 or for a child who is at home due to school and day-care closures. Unemployed workers who have traditionally paid into the EI system would be rewarded through a tax credit. To avoid incentivising temporary layoffs, a payroll subsidy would be adopted. The plan would also address broader concerns regarding the unsustainability of public spending during the crisis by limiting access to both temporary layoffs and the payroll subsidy. Lord further suggests that large and profitable companies, as well as companies with high revenue or cash reserves, would not be able to temporarily lay their employees off during the crisis or benefit from the subsidy; whereas companies that face liquidity issues yet are not eligible for the subsidy, would receive short-term, interest-bearing emergency loans.
3. Conclusion
‘Decency’ is not normally discussed in the context of the principles of good democratic law making, and it does seem an overly moralistic approach to dealing with legislative principles. However, as a catch-all word to cover best practices of how we ‘ought’ to make law it does serve a purpose and does enjoin us to follow Camus’ idealistic advice.
The articles in this special issue highlight the optimistic nature of what legislation has the potential to attain, the ‘morality of aspiration’ as Fuller put it.Footnote10 Elements of this are well known to legisprudence scholars, and indeed to anyone involved in constitutional study: emergency legislation should be kept separate from normal legislation, emergency legislation should not be used as a power-grab by the Executive but should contain proper checks and balances, all legislation must be in compliance with the constitution and indeed the constitutional precept of a government of laws, legislation is not an excuse to settle scores by the ruling party, legislation should be rational with a sound evidence base for achieving its objectives. This all represents law-making with ‘decency’, or from the perspective of legisprudence, as good principles for democratic law-making in accordance with the Rule of Law.
Acknowledgements
The editors wish to thank Aoife Sheehy for wonderful editorial oversight and A. Amala Arputharaj from our publishers for pulling out all the stops to get articles published quickly. We also thank Itay Cohen, Yehonatan Dayan, Tal Eyal Lipschutz, Chani Koth and Tair Samimi Golan for their editorial assistance. We further thank Dr Ruth Silverman for introducing the idea for this special issue. Finally, we are grateful to the authors who contributed articles to this special issue, to the many authors who submitted proposals which we could unfortunately not publish, and to the multiple anonymous reviewers who kindly agreed to donate their time and insightful comments in a very short time frame.
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Notes
1 Albert Camus, The Plague (1947)
2 For brevity, we will simply use the terms ‘coronavirus’ or ‘covid-19’ to refer to the 2019 novel Coronavirus (SARS-CoV-2) and to the resulting coronavirus disease 2019 (Covid-19).
3 For an overview of the previous issue see, Ronan Cormacain and Ittai Bar-Siman-Tov, ‘Legislatures in the Time of Covid-19’ (2020) 8(1) The Theory and Practice of Legislation, DOI: 10.1080/20508840.2020.1816017.
4 Ronan Cormacain, ‘Keeping Covid-19 Emergency Legislation Socially Distant from Ordinary Legislation: Principles for the Structure of Emergency Legislation’ (2020) The Theory and Practice of Legislation, DOI:10.1080/20508840.2020.1786272.
5 Klaus Meßerschmidt, ‘COVID-19 Legislation in the Light of the Precautionary Principle’ (2020) The Theory and Practice of Legislation, DOI:10.1080/20508840.2020.1783627.
6 Sébastien Platon, ‘Reinventing the Wheel … and Rolling Over Fundamental Freedoms? The Covid-19 Epidemic in France and the “State of Health Emergency”’ (2020) The Theory and Practice of Legislation, DOI:10.1080/20508840.2020.1804110.
7 Maame Efua Addadzi-Koom, ‘Quasi-State of Emergency: Assessing the Constitutionality of Ghana’s Legislative Response to Covid-19’ (2020) The Theory and Practice of Legislation, DOI:10.1080/20508840.2020.1777648.
8 Csaba Győry and Nyasha Weinberg, ‘Emergency Powers in a Hybrid Regime. The Case of Hungary’ (2020) The Theory and Practice of Legislation, DOI:10.1080/20508840.2020.1838755.
9 Phil Lord, ‘Incentivising Employment during the COVID-19 Pandemic’ (2020) The Theory and Practice of Legislation, DOI:10.1080/20508840.2020.1792635.
10 Lon Fuller, The Morality of the Law (Yale University Press, 1964).