C Explanatory memorandum
by Mr Ian Liddell-Grainger, rapporteur
1 Introduction
1. In the first place, the Covid-19
pandemic is a global public health emergency. Therefore, the legitimate priority
for public authorities has been to save human lives and to protect
peoples’ health by ensuring resilience of health care systems.
Note
2. At the same time, it was clear from the outset that the pandemic
will inevitably have multi-faceted, wide-ranging and lasting consequences
for the economic, social and political lives of our societies.
3. In view of the exceptional nature of the threat, many governments
in Europe and globally have had no choice but to enact, under time
constraints, immediate and extraordinary measures aimed at stopping,
delaying or limiting the spread of the disease (lockdowns, restrictions
on the freedom of movement, and more broadly, on many other human
rights and fundamental freedoms). These measures have had a significant
impact on people’s lives.
4. At the same time, the pandemic has been a crash test for governance
systems and institutions. It constitutes a challenge to the very
essence of our democracies based on the values and principles of
rule of law and human rights, and on the interplay of institutions
and other actors in democratic systems.
5. For tackling the Covid-19 pandemic and its intertwined health,
social and economic impacts, our member States have relied primarily
on their own resources and on co-operation in, and advice from,
relevant international organisations.
6. For its part, the Council of Europe is duty-bound, by its
mandate, to see to it that respect of basic principles of democracy,
respect for human rights and the rule of law remains on the top
of national and international political agendas even in the current
crisis.
7. In this context, the swift reaction by the various Council
of Europe officials and entities (Secretary General, President of
the Parliamentary Assembly, chairpersons and rapporteurs of Assembly
committees, Commissioner for Human Rights, European Commission for
Democracy through Law (Venice Commission), European Centre for Global
Interdependence and Solidarity (North-South Centre), chairperson
of the Committee of Convention 108 and Data Protection Commissioner
of the Council of Europe as well as several Council of Europe monitoring
or advisory bodies), highlighting the importance of ensuring the
compliance of emergency measures with the fundamental values and
standards, were very timely and should be welcomed.
9. The Chairperson of the committee, Dame Cheryl Gillan, made
a public statement on 25 March 2020 warning that “
in
times of crisis, parliamentary democracy cannot be put 'on hold’”, calling for parliamentary scrutiny of governments,
even if exercised through new means, to be protected during the
Covid-19 pandemic to ensure transparency and public debate and to
preserve citizens’ trust in democratic institutions. She also called
upon people's representatives to rise to the challenge of these
extraordinary circumstances and put the general interest, as well
as the security and safety of the population, above and beyond any
political games or tactics.
10. The President of the Parliamentary Assembly also issued several
statements underlining the need to keep democratic safeguards in
place during and after a pandemic, particularly parliamentary scrutiny
of the executive,
Note and,
on 2 June 2020, addressed to national parliaments a “toolbox” to
help them carry out their tasks.
Note
11. For its part, the Venice Commission published two useful documents:
a compilation of its opinions and reports on states of emergency
Note and a study “Respect for democracy,
human rights and the rule of law during states of emergency – reflections”.
Note It also set up an Observatory on
the situations of emergency in Venice Commission member States whose
aim is to collect country-specific information on constitutional
and extra-constitutional emergency powers, on relevant mechanisms
of parliamentary and judicial oversight and on electoral experiences.
The Observatory thus provides systematised comparative information
which may be used by lawyers, scholars, State officials, international
and non-governmental organisations working in this field.
12. Amongst the intergovernmental structures of the Council of
Europe, the European Committee on Democracy and Governance (CDDG)
provided a good example of how member States can benefit from multilateral
co-operation to strengthen their response to Covid-19. Since the
beginning of the emergency, CDDG members have been collecting and
sharing information on legal and policy developments, case studies and
good practices as regards the co-ordination and collaboration between
different levels of government, cross-border and inter-municipal
cooperation, the role of local authorities, public administration
innovation making it possible to ensure the continuous provision
of essential services to the public.
Note
13. The Covid-19 crisis is, inter alia,
a consequence of ill-governed globalisation. It has shown the urgent need
for a genuine and constructive multilateralism to anticipate and
address real, not fake threats, and for global co-operation, beyond
partisan cleavages and interests, as well as co-ordinated actions
to ensure effective and integrated crisis management. The power
distribution among countries may have also influenced the handling
of the pandemic by the World Health Organisation (WHO). In retrospect,
many lessons can be learnt to prepare for future crises and to improve
the functioning of the international system.
14. The present report is one of the five reports entrusted to
Assembly committees with a view to covering the challenges raised
by the pandemic falling within their mandate. It is therefore only
natural that it covers the impact the pandemic has had on democracy
and, in particular, the role of national parliaments in handling
the crisis, as well as global challenges.
Note I was appointed rapporteur on 28
May 2020. On the same day, the committee held a video hearing with
the participation of Mr Oliver Kask, Chairperson of the Council
of Democratic Elections of the Venice Commission, Judge of the Court
of Appeal of Estonia; Mr Iain Cameron, member of the Venice Commission;
Professor, University of Uppsala, Sweden; and Ms Meg Russell, Director, Constitution
Unit; Department of Political Science, University College London,
United Kingdom.
Note I
presented a preliminary draft report at the meeting of the Committee
on 23 June (by videoconference). On this occasion, the committee
also exchanged views with Mr Charles Clift, Senior Consulting Fellow,
Global Health Programme, Chatham House, United Kingdom.
2 Democratic safeguards in emergency
situations
15. As mentioned above, the pandemic
has been a crash test for governance systems and institutions. It constitutes
a challenge to the very essence of our democracies. Undoubtedly,
the way in which public authorities across Europe reacted to the
crisis, and the steps taken to respond to the pandemic, are set
to determine the trajectory of European democracies for years if
not decades to come.
16. In addition, there is a risk that legitimate feelings of fear
and uncertainty among the population provoked by the Covid-19 could
subsequently be further exploited, and re-oriented on other issues
causing public concern (for example terrorist threat, migration,
etc.) leading to xenophobic trends and nationalistic rhetoric. Therefore,
there is an increased need for continued vigilance on the part of
the Council of Europe to identify and address such attempts in the
future.
2.1 Crisis management and democratic requirements
17. As at all times of crisis,
facing a pandemic calls for:
- continuity
of democratic governance;
- trustworthy institutions;
- responsible democratic leadership;
- responsible citizenry;
- common responses and solidarity opposed to national isolation.
18. In times of crisis, Council of Europe governments must remain
transparent and accountable, democratic checks and balances must
be maintained and extraordinary powers and states of emergency must
be applied carefully, limited in time and scope and always subject
to parliamentary scrutiny and the control of the courts.
Note The democratic process should
only be impeded as much as is necessary to address the emergency
and for a limited period. Freedom of expression must be maintained,
parliaments, political parties and courts should continue to function
as much as possible.
19. Continuity of legitimate democratic institutions is of key
importance for the resilience of democratic governance. Society
must be able to rely on existing organs of the State that should
continue to operate during extraordinary situations. In particularly
demanding crisis circumstances, all branches of government are required
to co-operate for the sake of public good. As pointed out by the
Venice Commission, “
As a state of emergency
involves derogations from the ordinary rules on distribution of
powers, it is important, for the crisis management to be effective
and coordinated and for the sake of equality and fairness of treatment
of all citizens, that all state, regional and local institutions
and bodies respect the principle of loyal cooperation and mutual
respect between them”.
Note
20. Emergency situations may require exceptional measures to be
swiftly decided upon and enacted through extraordinary procedures.
The expediency of short cutting the normal institutional decision-making process
is based on the primary duty of public authorities to protect the
population.
21. In this context, it is worth recalling that, according to
the Venice Commission, “
The security
of the State and of its democratic institutions, and the safety
of its officials and population, are vital public and private interests
that deserve protection and may lead to a temporary derogation from
certain human rights and to an extraordinary division of powers...”.
Note
22. In particular, public emergency situations may lead to alterations
in the distribution of functions and powers among the different
organs of the State. The executive may be authorised to take measures
which otherwise would require legislative action.
23. The national authorities in each country shall determine the
nature and the scope of emergency measures and procedures that best
fit the pressing needs of their citizens. Where possible, such specific emergency
measures may be adopted by parliament for dealing with the specific
situation which goes beyond the existing law. The general emergency
regime should preferably be laid down in the Constitution, and in
more detail, in a separate law, preferably an organic or constitutional
law. The latter should always be adopted by parliament in advance,
during normal times, in the ordinary procedure.
Note In any event, any general
or specific emergency legislation or executive decree must comply
with constitutional and international standards.
24. It should be recalled that “…
State
security and public safety can only be effectively secured in a democracy
which fully respects the Rule of Law. This requires parliamentary
control and judicial review of the existence and duration of a declared
emergency situation in order to avoid abuse.”
Note
25. Emergency measures must have a legal basis, be targeted, proportionate,
transparent, non-discriminatory, and temporary.
Note
26. In
Resolution 2209
(2018) on “State of emergency: proportionality issues concerning
derogations under Article 15 of the European Convention on Human
Rights”, the Assembly recalled the basic requirements for any derogatory
emergency measures to be in compliance with democratic standards:
“3.
… Fundamental safeguards of the rule of law, in particular legality,
effective parliamentary oversight, independent judicial control
and effective domestic remedies, must be maintained even during
a state of emergency. Due democratic process, including separation
of powers, as well as political pluralism and the independence of
civil society and the media must also continue to be respected and
protected.
4. Beyond these constraints,
the overarching principle of proportionality limits the action that
may be taken, via the stringent test of what is “strictly required
by the exigencies of the situation”. Normal measures or restrictions
permitted by the Convention for the maintenance of public safety,
health and order must be plainly inadequate before derogatory, emergency
measures are permissible. A state of emergency that requires derogation
from the Convention must be limited in duration, circumstance and scope.
Emergency powers may be exercised only for the purposes for which
they were granted. The duration of emergency measures and their
effects may not exceed that of the state of emergency.”
27. From the outset of the crisis, there was a risk that the pandemic
could be used as a pretext to curb democracy, human rights and the
rule of law, and thus further accelerate deteriorating trends which
were already observed in many countries, and globally, long before.
28. Moreover, these trends might well survive the virus; measures
(even well justified ones) introduced to facilitate the quick response
to the pandemic may not be revoked once it is over.
29. It is therefore important to recall that a state of emergency,
if declared, must be of a limited duration, and not exceed the duration
of the emergency situation warranting these measures. The Venice
Commission recalled that “
…the main purpose
of the state of emergency is to restore the democratic legal order.
The emergency regime should not be unduly protracted; if the Government
rules through emergency powers for too long, it will inevitably
lose democratic legitimacy”.
Note
30. Any emergency legislation or executive decree should contain
“sunset clauses”, namely clear time limits indicating the duration
of exceptional measures. Since the main purpose of emergency management
is to stop the crisis and to revert to normality as soon as possible,
the scope of emergency measures must be limited to the strictly
necessary, and not allow altering the fundamentals underlying democratic
rule.
31. Permanent changes to legislation, in particular relating to
the electoral system, as well as constitutional amendments, should
not be introduced during a state of emergency.
32. The Venice Commission warned that “…
emergency
powers have been abused by authoritarian governments to stay in
power, to silence the opposition and to restrict human rights in
general. Strict limits on the duration, circumstance and scope of
such powers is therefore essential…”.
Note
33. Emergency situations, in particular when these are substantiated
by a formal introduction of a state of emergency, are generally
characterised by a shift of power from parliament to government.
Nevertheless, Parliaments, as cornerstone institutions of democracy,
must continue to play their triple role of representation, legislation
and oversight.
34. The latter is of particular importance in times of crises
where the executive acquires additional powers. Parliamentary oversight
remains an essential requirement of parliamentary democracy, all
the more so in times of emergencies: “
Legislative
control over the acts and actions of emergency rule authorities
and special procedures for such control are important for the realisation
of the rule of law and democracy. In most of the democratic constitutions
the executive has the right to declare emergency rule, subject to
parliamentary approval. The question of by whom, how and when an
emergency rule is to be terminated cannot also be left to the executive
enjoying its increased power. It must be the function of the Parliament.
This implies a continuity of parliamentary life during the period
of emergency. For that reason, some constitutions explicitly state
that the legislature cannot be dissolved during the exercise of
emergency powers.”
Note
35. The continuity of parliament during an emergency situation
and the publicity of its work contributes to the legitimacy of government
insofar as it allows all major political forces, including the opposition,
to be represented in political debate and to contribute (even if
to a reduced degree) to democratic decision-making in times of crisis:
“
Many constitutions provide for the possibility
of the executive to legislate in emergency situations. Parliament
should be involved in this process through the approval of the declaration
of the state of emergency, and/or through ex post scrutiny of the
emergency decrees or any extension of the period of emergency. Participation
of the opposition in those matters may be ensured by requiring a
qualified majority for the prolongation of the state of emergency
beyond the original period ... It may also be useful to limit the legislative
powers of the executive in emergency situations to certain specific
matters, so that the executive cannot use its legislative functions
to suppress opposition rights …These limitations prevent the executive
from using an emergency as a pretext for curtailing the rights of
the opposition.”
Note The post-hoc general accountability
powers of parliament, namely the right to conduct inquiries and
investigations on the execution of emergency powers, are extremely
important for assessing government behaviour. An open declaration
that post-hoc scrutiny will happen can normally have the effect
of deterring major overreactions on the part of government during
the crisis.
Note
36. At the same time, the crisis context and the pandemic threat
should not be instrumentalised for political purposes, neither by
the majority nor by the opposition. Above and beyond party cleavages,
politicians must act with utmost responsibility for public good
to minimise the damage to the population, economy, social structures
and public institutions, overcome the causes of the crisis and allow
for swift return to normality.
37. When addressing the nation on 27 March 2020, Sergio Mattarela,
the President of Italy, the first European country severely hit
by the virus with unprecedented infection and death rates, stressed
that “citizens’ sense of responsibility
is the most important resource of a democratic state”.
Helping citizens participate in the implementation of solutions
is not only a key aspect to overcome the pandemic crisis, it is
also key to democratic resilience.
38. Citizens’ confidence in public authorities and democratic
institutions and processes, which is important at all times for
the resilience of democratic governance, is essential in times of
crisis. Curtailing public debate and restricting the functioning
of key elements of the democratic system may not only undermine
democracy as such but also damage people’s adherence to, and the
effectiveness of, any emergency policies and actions taken to address
the primary causes of crisis and protect the population.
39. Hence the need for public authorities to ensure maximum openness
and deliver to citizens regular, easily understandable and as much
full and accurate information as possible, by providing access of
the media to State institutions in order to guarantee transparency,
and encourage public debate
Note.
2.2 Elections during emergency situations:
guiding principles
40. Since the outbreak of the Covid-19
pandemic, 65 countries around the world have had to postpone elections
at different levels (parliamentary, presidential or municipal).
Note Elections at various levels have
also been postponed in a number of Council of Europe member States,
while in others their organisation has given rise to controversies
either about the principle of holding elections during the pandemic
or the specific modalities.
41. For instance, in Serbia, elections initially scheduled in
April were finally organised on 21 June and 1 July under disputed
sanitary conditions.
Note In Poland, the presidential
election was initially scheduled to be held on 10 May. The authorities
of Poland opted not to declare a state of emergency but instituted
a state of epidemiological emergency to deal with the pandemic and
enacted a special law to hold the elections entirely by postal vote.
In this regard, the Assembly’s Monitoring Committee co-rapporteurs
for Poland issued a
statement in which they welcomed the authorities’ wish to ensure
the continuation of the democratic process but concluded that the
appropriate conditions for holding democratic elections were not
in place at that time. The co-rapporteurs therefore urged the authorities
to postpone the elections until such time as genuine democratic
elections could be held. A new law providing for the possibility
of voting either in polling stations or by post was passed on 2
June. The main political stakeholders agreed on the new date of
28 June for the presidential election (and 12 July for the second
round) which was observed by an Assembly election assessment mission.
Note
42. There is no general principle of avoiding elections during
an emergency situation, such as a pandemic, and postpone them until
the situation is normal again, whether or not a state of emergency
has been officially declared. That said, in many Council of Europe
member States, the constitution explicitly forbids dissolution of parliament
during a state of war or a state of emergency. Under several constitutions
an extraordinary situation will postpone, or provide an opportunity
to postpone upcoming elections, for example by extending the term
of parliament (Canada, Croatia, Germany, Greece, Hungary, Italy,
Lithuania, Poland, Slovenia and Spain) or prohibiting the dissolution
of parliament (Germany, Hungary, Poland, Portugal, Russia and Spain).
In Turkey, a declared state of war causes elections to be postponed
(Article 78 of the Constitution).
2.2.1 Legal criteria
43. At the committee hearing on
28 May 2020, Mr Oliver Kask, Chairperson of the Council for Democratic Elections
of the Venice Commission, presented a set of “reflections” on the
issue which were published two days earlier.
Note On this basis, I would summarise the
following legal criteria that must guide a decision to hold or postpone
elections during a situation of emergency, leaving it to each member
State to assess how they apply to the specific circumstances of
emergency it is facing at a given time:
- postponement is a restriction to the periodicity of elections
as guaranteed by Article 3 of the First Additional Protocol to the
European Convention on Human Rights (ETS No 9), and has thus to
be foreseen in the law, be necessary in the concrete circumstances
and be proportionate. However, in case an emergency law is missing,
and the postponement is not provided for, a parliament may still
provide a legal ground for the postponement of elections, even during
a state of emergency, in light of the factual situation, especially
if the free movement or access to information is widely limited.
To meet the proportionality test, the decision on the postponement
of elections has to be based on specific circumstances and may lead
to different outcomes depending on the exceptional circumstances
(either armed or other violent conflicts between groups of society;
epidemic or pandemic; natural disasters);
- in order for the elections to be in accordance with the
main principles stated in the Code of Good Practice in Electoral
Matters, that is universal, equal, free, secret and direct suffrage,
it must be possible not only to give a vote, but also to have open
and fair electoral campaigning, including a real public debate.
This presupposes, in particular, respect for freedom of expression
and of the press and the freedom of assembly and association for
political purposes, including the creation of political parties.
There is a risk that fundamental electoral principles will be undermined
during an emergency situation, in particular the principle of equality
of opportunity and freedom of voters to form an opinion. Similarly,
derogation from individuals’ civil and political rights creates
a risk that the results are not democratic. Thus, the fairness of
elections held under circumstances of emergency, such as a pandemic,
might be doubtful;
- even if campaigning may be possible during the state of
emergency, the postponement of elections can lead to a more thorough
debate, beyond the main concerns among the society linked to the
emergency situation, and thus to free and fair elections later.
2.2.2 Other considerations
44. Beyond the legal criteria,
there is a wide list of other considerations to be taken into account
when deciding on the postponement of elections. From those mentioned
by the Venice Commission, I would, in particular, draw attention
to the following which are most relevant in the context of the pandemic
and can serve as lessons for the future:
2.2.2.1 Large
scope of abuse
45. A state of emergency may be
promulgated or prolonged, based on partisan political reasons, rather
than the objective needs of the situation, for instance to avoid
predictable election results not supporting the outgoing government
or incumbent candidates. On the other hand, partisan political reasons
may lead to a decision not to declare a state of emergency in order
to avoid postponement if organising elections is likely to favour
those in power. The Venice Commission thus proposes a list of measures
against such abuse:
“a. There
should be judicial control by a national independent and impartial
court, ideally by the constitutional court, if such exists …;
b. All political parties and other stakeholders should
be involved in the discussion before the postponement of elections
or, if the circumstances allow, also before the promulgation of
state of emergency;
c. The postponement of elections may be limited in time
by law, providing for the elections taking place even during the
state of emergency if it lasts for long time, e.g. over a year;
d. A qualified majority in the parliament may be required
to decide on the postponement of elections, to guarantee that there
is at least a wide agreement on the postponement in the society,
if not a consensus.”
2.2.2.2 Campaigning
possibilities
46. During a situation of emergency,
such as a pandemic, door-to-door campaigning or public rallies may
be subject to severe limitations. According to the Venice Commission
document, it has to be assessed “for
how far it is possible to compensate for this by means of public
or private media or the use of Internet, including social media.
If the campaigning in the country in question is done mainly through
social media, TV, radio and newspapers, the limitation of campaigning
in the form of rallies or demonstrations may be less important.
The role of traditional electronic media (radio and television)
is also increased in this type of situation: special attention should
be paid to the duty of neutrality of the authorities, as well as
to the obligation of broadcasters to cover election campaigns in
a fair, balanced and impartial manner in their overall programme
services, in conformity with CM/Rec(2007)15 Recommendation of the
Committee of Ministers to member states on measures concerning media
coverage of election campaigns. A particular issue indeed arises
if government-controlled public media are in a dominant position.
Especially in nationwide elections the use of new technologies is
becoming more and more prevalent compared to rallies.”
2.2.2.3 Security
of election management staff and members of election commissions
during election day and vote counting
47. It has to be taken into account
how far the electoral procedures can be automated, for example by
use of machine counting of ballot papers or voting by voting machines,
or whether internet voting is provided.
2.2.2.4 Providing
for different voting modalities
48. Different voting modalities
like postal voting, mobile ballot boxes and voting by Internet or
proxy voting may be taken into account, if provided by law and if
the conditions for universal, free, secret and direct suffrage are
met. If internet voting is only one of many possible means for voting,
the exclusion of other means can lead to a lesser participation
in elections by those who are not so used to voting by internet,
mainly elderly voters or voters from vulnerable groups. This may
have an impact on the election results and thus the fairness of elections.
49. Although the best solution is to provide for exceptional voting
modalities in the electoral law in advance, during ordinary circumstances,
it is possible to do so during a situation of emergency. According
to the Venice Commission document, making a change of the election
code as regards voting modalities less than one year before elections
may possibly be in accordance with the Code of Good Practice in
Electoral Matters if it is necessary for, or contributes to, fair
elections. The Venice Commission
states that “such late amendments may only
be in accordance with best European practices if the principle of
free suffrage is guaranteed in its core elements and such special
means are in accordance with the requirements stipulated in the
Code of Good Practice in Electoral Matters, section I.3.2. and other
documents, e.g. Recommendation CM/Rec(2017)5 of the Committee of
Ministers to member States on standards for e-voting ... If exceptional
or limited means of voting are provided, the state institutions
have to arrange voters’ training in the media and the social media
in order for the voters to know how to take up the options they
otherwise do not use.”
50. During the committee meeting on 28 May 2020, the President
of the Assembly noted that the use of different voting modalities,
for instance postal voting, may have different consequences depending
on the electoral system in force in a country. This raises issues
which go beyond the discussion of elections during emergency situations
and calls for a separate study by the Venice Commission.
Note
2.2.2.5 Turnout
51. Turnout is likely to be lower
where elections are held during an emergency situation, with elderly
people or most vulnerable groups of voters likely to participate
less actively. Special means of participation for those vulnerable
groups such as mobile ballot boxes, drive-in polling stations or
internet voting via most widely used hardware must be provided.
If there are turnout requirements, the situation may lead to invalidity
of the election results, especially if there are factual or legal
limitations on the free movement within the country or on the possibilities
for out-of-country voting.
2.2.2.6 Finances
52. Organising elections during
an emergency situation may be financially more difficult for state
institutions than postponing the elections, as some special arrangements
are probably necessary due to security reasons. As state finances
have to be used to the maximum extent to combat the extraordinary
circumstances, this consideration may advocate in favour of postponement.
2.2.2.7 Procedural
modifications
53. According to the Venice Commission,
“late amendments to the electoral legislation,
applicable only for concrete elections held during a situation of
emergency, do not necessarily go against the European principles of
electoral law. They may include prolongation of different deadlines,
including for vote counting, or waiving the requirements for candidate
nomination such as the requirement to collect support signatures
(if this is not possible online).” The best option would
however be to provide such procedural modifications in election
code beforehand.
2.2.2.8 Election
observation
54. Where the elections are not
postponed it may be difficult or even impossible to monitor their
conduct, especially by the international community, thus increasing
the risk of possible fraud and manipulation of election results.
However, where the election management bodies have a long tradition
of independence and online observation possibilities are available,
the fairness of the election is easier to guarantee.
55. During the committee meeting on 28 May, several members underlined
that, in view of the importance of its election observation role
and taking into consideration new legal and practical challenges
when organising elections during an emergency situation, the Assembly
should consider modalities for resuming election observation missions,
currently suspended, especially as the electoral calendar for autumn
is quite heavy. The Assembly should co-ordinate such decisions with
its institutional partners, in the framework of the International
Election Observation Mission, namely the Office for Democratic Institutions
and Human Rights of the Organization for Security and Cooperation
in Europe (OSCE/ODIHR), the Parliamentary Assembly of the OSCE,
the Parliamentary Assembly of the North Atlantic Treaty Organization
(NATO) and the European Parliament.
2.2.3 State institution competent to decide
on postponement
56. There is no general rule which
State institution should be competent to decide the postponement
of elections. When there is no constitutional provision prohibiting
elections during a state of emergency or an emergency situation
and this is left to the discretion of an institution, the decision
whether or not to hold elections may be either for the parliament,
the president, the government or a higher level election commission.
57. According to the document by the Venice Commission, due to
the importance of the issue, “it is recommended
that such a decision be taken by the parliament. In any case, a
provision either in the constitution or organic law (e.g. electoral
law) foreseeing a postponement should be included. If the postponement
concerns only part of the country or it the elections are to be
postponed only for a short period (less than two months), a decision
can be made by the election administration or the government. Where,
by contrast, a postponement is for more than six months, this should
be decided by the legislative body. One option is to require a qualified
majority in the parliament for the longer postponements of elections.
However a state may choose to deal with the issue, only one institution
should be competent to decide on the matter. Different stakeholders,
including political parties, election management bodies and experts
(e.g. in pandemic, health authorities) have to be consulted beforehand.”
2.2.4 Limited legitimacy equals limited
scope for legislation
58. If elections are postponed,
the legitimacy of parliament is to some extent limited. Thus, parliament
should abstain from adopting amendments to the constitution, organic
laws or other important reforms under political debate which are
not necessary to return to a normal situation.
2.2.5 Referendums
59. Due to the difficulties of
guaranteeing free campaigning and public debate on reforms with
a longer effect, referendums, especially constitutional referendums,
should be postponed until the end of a state of emergency. According
to the Venice Commission, holding referendums would go against European
standards enshrined in the Code of Good Practice on Referendums.
3 National parliaments facing Covid-19
3.1 The role of parliaments as guarantors
of democracy in times of crisis
60. Parliaments perform a vital
role in any system of representative democracy, but they must play
an especially important role in times of crisis – not only in preserving
the quality of governance by ensuring transparency and accountability,
but also in shaping the public’s expectations and attitudes to democracy. Parliaments
are the single most important institution in overseeing government
activity, adopting legislation and scrutinising its implementation,
and representing the public’s concerns to those in government.
Note
61. The overarching purpose of parliamentary oversight is to hold
government to account. While governments are directly accountable
to voters during elections, in between elections it is the duty
of parliamentarians to hold ministers and their departments to account
on the public's behalf. The Inter-Parliamentary Union’s Tools for
Parliamentary Oversight
Note sets out four key oversight roles:
- transparency and openness: parliament
should shed light on the operations of government. It provides a
public arena in which government’s policies and actions are debated,
exposed to scrutiny and held up to public opinion;
- delivery: parliamentary oversight should test whether
the government’s policies have been implemented, and whether they
are having the desired impact;
- value for money: parliament needs to approve and scrutinise
government spending. It should highlight waste within publicly funded
services, and aim to improve the economy, efficiency and effectiveness
of government expenditure;
- tackling corruption and misuse of power: parliament should
protect the rights of citizens by detecting and preventing abuse
of power, arbitrary behaviour and illegal or unconstitutional conduct
by government.
62. As mentioned above, in times of emergency, decision making
is inevitably concentrated in the executive more than in normal
circumstances.
Note The role of parliaments in representing
the interests of citizens, in considering new legislation to mitigate
the effects of the Covid-19 pandemic, and, in particular, in overseeing the
emergency measures introduced by governments is therefore more important
than ever.
3.2 Parliaments adapting to Covid-19:
overview of various national experiences and good practice
63. Parliaments are subject to
the same or similar public health and social distancing measures
as other public institutions. In order to continue carrying out
their duties while complying with sanitary requirements and thus
protecting their members and staff, they have had to rearrange considerably
the way they work.
64. In order to acquire a better insight into the various responses
taken by parliaments of Council of Europe member States, our committee
sent a questionnaire to national parliaments via the European Centre
for Parliamentary Research and Documentation (ECPRD). In addition,
the chairperson launched an internal consultation among members
of the committee.
65. The questionnaire focused on two main questions. The first
referred to whether parliaments had adopted emergency legislation,
and the second, whether parliaments have been consulted by the government
on, and/or agreed to, introducing special measures, such as quarantine
rules, curfew or a state of emergency.
66. From the responses received, there seem to be two major currents:
the first refers to States whose parliaments have adopted emergency
legislation and had been consulted by the government to introduce special
measures, and the second to States where prior consultation of the
parliament was not necessary.
67. Speaking at the virtual hearing in our committee on 28 May
2020, Ms Meg Russell considered five options for parliaments to
respond to the challenges of the pandemic:
- close all work (recess);
- limit functions to essential or emergency business;
- operate with fewer members;
- work online;
- set up alternative temporary structures to operate under
the current specific circumstances.Note
68. Taking into account the crucial importance of parliamentary
oversight on emergency policies of governments, totally suspending
the work of parliaments would be detrimental to the proper functioning
of checks and balances and is therefore completely inappropriate
in a democracy. This conclusion is consistent, inter alia, with the position of
the Venice Commission referred to above.
69. In practice, since the outbreak of the Covid-19 pandemic,
most Council of Europe member States’ parliaments have continued
to exercise without interruption their constitutional duties (with
a few temporary exceptions, for example Easter recess in the United
Kingdom) while adapting their work and implementing, to varying
degrees, a combination of the four other options (namely limiting
the scope of business, operating with fewer members, working online
and setting up new structures).
70. Indeed, many parliaments restricted their statutory, legislative
and oversight functions to urgent issues related to the sanitary
crisis and its broader consequences for societies. However, the
practice differs from country to country, depending, on the one
hand, on the constitutional and legal framework, and on the other hand,
on specific health conditions. While some countries enacted states
of emergency, others opted for less stringent legal regimes not
disturbing the institutional roles of the executive and the parliament.
In some countries, there is no constitutional provision for introducing
a state of emergency and no legal grounds for restricting the functioning
of parliament (for example Austria).
71. Where relevant, parliaments were consulted by governments
on the declaration of a state of emergency and/or adopted legislation
authorising governments to take emergency measures by decrees.
72. For instance, in the United Kingdom, the Coronavirus Act 2020
was introduced as emergency legislation on 19 March 2020. It is
intended to enable the government to respond to an emergency situation
and manage the effects of a pandemic
Note.
73. The Norwegian Storting adopted on 21 March 2020 a new temporary
Corona Act to allow the government to make decisions that according
to the Norwegian Constitution must be made in the Storting. It gives
the King (namely the government) the authority to add to or depart
from certain legislation as far as is necessary to safeguard the
intention of the law. While the government initially proposed the
legislation to apply for six months, the final act was only valid
for 1 month. Moreover, it included a clause that would allow the Storting
at any given time to repeal partly or in full the enabling act by
a one-third minority vote in the Chamber.
Note
74. In Hungary, the National Assembly adopted on 30 March 2020
a Coronavirus Response Act (Act XII of 2020 on the containment of
coronavirus) by which it authorised the government “…
in order to guarantee that life, health, person,
property and rights of the citizens are protected, and to guarantee
the stability of the national economy, by means of a decree, suspend
the application of certain Acts, derogate from the provisions of
Acts and take other extraordinary measures.” The latter
has been strongly criticized, both by the opposition parties and
abroad, as a threat to parliamentary democracy and a step towards
an authoritarian rule, in particular in light of the wide formulation
of the authorisation and the absence of any limitation in time.
Note For his part, our colleague Mr Zsolt
Németh, chairperson of the Hungarian delegation, pointed out in
his letter
Note that the National Assembly had
the power to revoke the authorisation, either in general or in the
case of specific measures, accorded to the government at any time
it considered this appropriate and also held the power to terminate
the effects of the legislation when the state of danger was over.
The Act could not and did not contain any restrictions on the activities
of the National Assembly and thus the National Assembly retained
its right of oversight and control. In addition, the government
was required by the bill to regularly inform the National Assembly
of the adopted exceptional measures. Mr Németh informed the committee
that on 16 June the National Assembly adopted the Act on the termination
of the state of emergency. On the same day, a new law was adopted
creating, amongst other things, the legal framework for a new ‘state
of medical emergency’ which is declared and can be repeatedly extended
by government decree, without parliamentary endorsement thus raising
serious concerns. On 17 June, the Prime Minister issued two decrees,
one ending the state of emergency and the other declaring an immediate
state of medical emergency.
Note
75. In Spain, the government introduced the state of alarm for
the management of the health crisis situation caused by Covid-19
by royal decree on 14 March 2020 for a maximum period of 15 days
and informed the Congress of Deputies immediately. It then sought
authorisation from the Congress of Deputies to extend the state
of alarm for another 15 days; this procedure has subsequently been
repeated several times.
Note The government also submitted
to the Congress of Deputies, for debate and approval by vote, a
number of decree-laws.
76. Similarly, in Italy, the government introduced, starting from
23 February 2020, a series of decree-laws aimed at counteracting
Covid-19, which had to be approved by the Houses of parliament within
60 days.
Note
77. Most parliaments have reduced the number of plenary sittings,
introduced changes in their order of business and limited their
work in plenary to only considering urgent legislation related to
the pandemic, while continuing work at the level of committees.
78. This is in line with Council of Europe standards: according
to the Toolkit for member States “Respecting democracy, rule of
law and human rights in the framework of the Covid-19 sanitary crisis”
issued by Secretary General, “
As a general
rule, fundamental legal reforms should be put on hold during the
state of emergency”.
Note Likewise, the Venice Commission stressed
the importance of “…
protecting the fundamentals
of the political system, notably the Constitution and the electoral
system. It stems from the consideration that a state of emergency
may entail limitations to the normal functioning of parliament (especially
for the role of the opposition) as well as, very often, limited
functioning of mass media and limitations on the exercise of political freedoms
such as freedom of assembly. Under these conditions, the democratic
process of constitutional amendment may not be fully guaranteed.”
Note
79. However, some parliaments continued to work on legislation
and to exercise prerogatives with no direct link to the pandemic.
For instance, the Verkhovna Rada of Ukraine adopted a number of
laws required for the continued co-operation with the International
Monetary Fund (for example Agrarian reform establishing agriculture
land market) and appointed a new Prosecutor General and three new
ministers.
Note In Poland, the Sejm (Lower
House) adopted on 6 April 2020 a draft “Act on special rules for
conducting the general election of the President of the Republic
of Poland in 2020”. The Senate (Upper House) rejected the draft
on 5 May 2020, but the Sejm overcame the Senate’s vote on 7 May
2020 and definitively adopted the law which made substantial changes
in the electoral legislation,
inter alia introducing
postal voting as the only form of voting during presidential election
which was finally held on 28 June (1st round)
and12 July (2nd round).
80. In order to reduce to a minimum the risks of proliferation
of the virus, many parliaments formally limited the number of members
who could participate in plenary sittings.
81. For instance, the Conference of Presidents of the French National
Assembly established since the outbreak of pandemic derogating rules
for the organisation of meetings in the National Assembly during
the period of containment until further notice. Firstly, only a
limited number of members could be present. Each of the eight political
groups was represented by only two members in addition to their
Chairperson or their representative. Subsequently, the number of
deputies who may be physically present in the assembly chamber was
increased to 75 on 26 April, and to 150 as of 11 May 2020.
Note
82. For the weekly questions-to-the-government session, the number
of questions has been restricted to four for the majority group,
La République en Marche, and for
the main opposition group,
Les Républicains, and
two questions each for the other six political groups. Non-registered
members may put one question every two sittings. It was initially
decided that the number of Ministers would be limited and that the
other persons present would be the chairpersons of the political
groups or their representatives and the authors of the questions.
However, because of the increasing spread of the pandemic, the Conference
of Presidents decided to reduce this quota from 31 March onwards
to a single representative for each political group, who is expected to
raise the questions on behalf of his or her group’s members.
Note
83. The German Bundestag modified on 25 March 2020 its Rules of
Procedure by lowering the decision-making quorum for plenary sittings
and committees to “more than a quarter” of the members, which made
it possible to hold plenary sittings and committee meetings with
fewer members present.
Note
84. In the Norwegian Storting, the number of members present in
the Chamber at the opening of the plenary and during voting was
limited to 87 (from the total of 169).
Note
85. In Greece, parliamentary committees were assembled with a
minimum presence of parliamentarians. Parliamentary oversight was
maintained via electronic means and teleconferencing. A minimum
number of MPs, in rotation, by each political party, were attending
plenary meetings.
86. Similar provisions were introduced in many other parliaments
in Europe.
87. Another option for parliaments to continue working during
the pandemic has been to increasingly use the modern communication
technologies and platforms, and allow online participation of members
in committee meetings, plenary sittings and even in voting.
88. For instance, on 19 March 2020, the Parliament of Romania
approved a state of emergency declared by the President, through
a remote procedure. Both Chambers of the Parliament amended their
Rules of Procedure to allow, in exceptional situations, remote meetings
of the parliamentary committees, as well as plenary sittings to
take place through electronic means. Similarly, on 16 April 2020
the parliament held a remote joint session of its Chambers to approve
the extension of the state of emergency.
Note
89. In the United Kingdom,
Note significant
technical and procedural work was carried out to allow parliament’s work
to continue in both new “hybrid” (meaning a mix of members in the
chamber and others participating by video conference) and “virtual”
(meaning all members participating by videoconference) formats.
Proposals for relevant changes to standing orders and other procedures
to allow hybrid and virtual sitting of the House of Commons were
unanimously approved by the House, on the basis of a cross-party
agreement, on 21 April 2020 and meetings in both formats started
on 22 April. On 22 April, the House of Commons issued temporary orders
to put in place a remote voting system for the duration of the temporary
orders.
90. At the UK Government’s instigation, the House of Commons voted
along party lines to end hybrid proceeding and remote divisions
on 20 May 2020. From 2 June 2020, the Commons continued to practice social
distancing with a maximum of 50 MPs allowed in the chamber at any
one time and voting in lobbies by MPs standing 2 meters apart.
91. The Latvian Saeima started using, from 26 May 2020, a new
platform developed for it that allows plenary sittings to be held
remotely, with MPs debating and voting on items in the plenary agenda
in real time. Although MPs used the tool from different rooms in
the parliament building during the sitting, it is set up to allow
them to participate from outside the building.
Note
92. In Monaco, the National Council unanimously agreed to hold
meetings that are a mix of virtual and physical, respecting social
distancing. MPs can vote with a show of hands or a verbal nominal
vote. The video of the session provides a recording of the session.
Note
93. In the Spanish Parliament (Cortes), video-conferencing and
remote voting was put in place for deputies who could not attend.
Remote voting was restricted and was already regulated for circumstances
such as pregnancy, maternity or paternity leave or serious illness.
Note
94. Both the Sejm and the Senate of Poland modified the statute
so as to allow parliamentarians to vote remotely. In the Senate,
meetings are held in a mixed system. Some senators are in the meeting
room, others in two other rooms in the Senate building, and others
are taking part in the meeting remotely from home.
Note
95. In Finland, one of the challenges has been the need to find
alternative solutions to ensure the continuity of parliamentary
work, which would be compatible with the Constitution. Members of
the parliament are now able to work remotely and participate in
parliamentary work by using digital tools. Members may follow parliament’s
work and leave legislative initiatives digitally, but not vote.
Note
96. Also, in most parliaments, members take part remotely in committee
meetings and hearings.
97. Last but not least, some parliaments decided to set up new
structures of scrutiny and accountability regarding the government’s
pandemic response. The best-publicised example was in the New Zealand Parliament,
which established a new 11-member Epidemic Response Committee, chaired
by the leader of the opposition, with an opposition majority; four
of its members are women (which is roughly in line with the proportionality
of the parliament which sits at 40.8% women MPs). At the height
of the pandemic, this committee took over essential parliamentary
scrutiny functions, such as ministerial questioning.
Note
98. In Norway, the Storting established on 18 March 2020 a special
committee to consider urgent matters relating to the coronavirus
crisis. The committee consists of the President of the Storting
and one MP from each of the nine parliamentary party groups.
Note
99. In France, the Bureau of the National Assembly decided on
5 May 2020, at the proposal of the President to set up a working
group, in which the quaestors and all the political group chairpersons
would participate, to discuss the functioning of parliamentary proceedings
in times of crisis of any kind and consider digital solutions for
supporting and improving parliamentary work in such circumstances.
Note
100. Summing up, it is fair to state that the parliaments of Council
of Europe member States have been quite flexible and developed various
innovative approaches in order to continue carrying out their statutory
duties during the pandemic crisis. However, these approaches do
raise some delicate questions, which are fundamental to parliaments.
At the virtual hearing in the Committee on 28 May 2020, Professor
Meg Russell identified the following issues:
101. First, who has the authority to take the key decisions about
procedural change? Many parliaments have a cross-party bureau or
similar organ to agree on business. This provided a ready forum
for quick and inclusive decision-making. In other parliaments, government
has more control. Notably in the House of Commons of the United
Kingdom, there was initially widespread consultation and cross-party
agreement on moving to virtual proceedings. However, this agreement
subsequently broke down, with ministers unilaterally announcing
an end to these arrangements
102. Both for principled democratic reasons, but also for pragmatic
reasons of maintaining the widest possible public support, cross-party
agreement on procedural changes seems crucial. Particularly if some
“non-essential” business is to be suspended – who should decide
what is non-essential? Who loses out? The crisis must not be an
opportunity to strengthen governments against parliaments.
103. Second, there are similar risks that changes strengthen party
leaderships against individual backbench members. If the number
of members taking part is limited, and party leaders choose them,
or choose for them, that risks stifling dissenting voices, and hence
the diversity essential to parliaments’ representative function.
104. Third, maintaining face-to-face proceedings during the crisis
could threaten another fundamental parliamentary principle: that
of equality of members. If some categories of members – for example,
those living further from the capital, or with poor health conditions,
are excluded, that is a problem, which could be resolved with virtual
arrangements.
105. Fourth, experimentation with such virtual arrangements also
helps remind us about key dynamics in how parliaments operate. While
formal proceedings are clearly vital, some of the most important
parliamentary politics occurs through informal discussions, often
behind-the-scenes. Much of that has been swept away by these more
formalised online style discussions.
106. Fifth, and finally, there are important questions about which,
if any, of these arrangements we want to keep after the crisis.
In the UK, for example, there will likely be debates about electronic
voting. More widely, in parliaments all over the world, there may
now be pressure from some members – particularly those from more
remote areas – to continue some form of virtual participation.
107. At one level, maintaining these arrangements might be seen
as making parliaments more accessible for members. But given the
importance of informal politics, the prospect of doing this raises
some really difficult questions for the future about what parliaments
are, and what we want them to be.
4 Global challenges and multilateral
responses
108. As said above, the Covid-19
crisis is also a consequence of ill-governed globalisation which
created new fragilities. States but also regional and global governance
structures have turned out to be totally unprepared for a crisis
of this scale. It showed the urgent need for a genuine and constructive
multilateralism to anticipate and address real threats for human
and global solidarity, beyond partisan cleavages and interests,
and for co-ordinated actions to ensure effective and integrated
crisis management.
4.1 Crash test of the system of global
governance
109. Although some scholars argue
that the world order after the pandemic will be fundamentally different,
it might be more accurate to say that the pandemic merely acted
as a catalyst to what was already going on in the world,
Note underscoring how society values
everyone’s economic and social roles
Note but also how divided and unprepared
the world remains as it confronts the greatest threat to global
public heath since 1918.
Note
110. The devastating magnitude of the event obviously called for
transnational co-operation and co-ordinated responses for it to
be solved.
Note The crisis has exposed
inadequacy of many existing international formats. For instance,
over the past years, the Group of Seven (G7) has been highly criticised
for being an exclusive group of states and its relevance has been
put in question. The G7 meeting of 16 March 2020 even revealed a
conflict between States over the name of the virus, resulting in
separate statements and division in the group.
Note
111. The Group of Twenty (G20), a more inclusive group of States,
put forward some concrete proposals to tackle poorer countries’
debt problems, also based on the lessons learnt during the 2008
financial crisis.
Note Productive G20 action
can deliver immediate gains in terms of lives saved and jobs recovered
but also demonstrate the power of global co-operation and set policymakers
on a better path to tackle not only future pandemics but also ongoing
and more silent disasters, such as the climate crisis.
Note
112. For their part, the United Nations (UN) and WHO have been
criticised for lack of authority in carrying out independent research
and for internal politicisation, which I shall discuss below.
Note Multilateral organisations require
support from all member States, authority and proper funding so
that they can act swiftly and issue recommendations based on evidence,
not political convenience.
113. Covid-19 has intensified the rivalry between the US and China,
but it has also strengthened international co-operation and willingness
to pursue dialogue rather than military and economic confrontation.
Former British Prime Minister, Theresa May, warned that a lack of
international co-operation “risks exacerbating the shift toward
nationalism and absolutism which is emasculating the institutions
that served us well over decades” and increasing divisions in dangerous
ways.
Note
114. At EU level, after weeks of disalignment, a set of financial
measures to support EU member States, in particular, the agreement
on a new “Recovery Fund” to support European economy and cohesion
among member States and citizens, marked a positive turn on 9 April
2020. A €750 billion stimulus, called ‘Next Generation EU’ and the
EU’s €1 trillion multi-annual financial framework were agreed by
the EU leaders in July and the EU Council and the Parliament will
need to agree on the final details by the end of the year.
4.2 Need for co-ordinated and multilateral
actions in crisis management
115. The Covid-19 crisis also reminds
us to what extent people are interconnected. The globalisation process and
the development of transportation facilities have increased interconnection.
116. Some have said that one of the outcomes of the pandemic would
be a return to a pre-globalisation era or at least a change in its
nature.
117. In any event, the pandemic is a wake-up call for restoring
multilateral co-operation and rebuilding confidence in institutions
to tackle the far-reaching health, economic, social, political,
infrastructural implications of the crisis, at a time when unilateralism,
nationalism and provincialism are gaining ground.
118. This is particularly critical for countries with poor infrastructure
and resources that depend on multilateral forums for resources and
solutions.
Note The
pandemic is having even greater direct and indirect impacts in developing
countries, conflict settings, refugee camps and amongst disadvantaged
groups, and more than 100 million people already rely on support
from UN’s humanitarian agencies.
Note
119. UN Secretary-General, António Guterres said that “together,
we can and will defeat this virus- with cooperation, solidarity,
and faith in our common humanity”. Indeed, trust is a vital element
in international multilateral relations. Speaking about the new
UN Communication Response, the Secretary General called for “trust
in science”, “trust in institutions”, and “trust in each other”.
Note
120. Conspiracy theorists are spreading dangerous disinformation
and misinformation about Covid-19, sowing seeds of doubts about
its severity and denying the very existence of the pandemic. Virus
deniers and “anti-vaccine”, “anti-masks” movements can threaten
the effective fight against the pandemic and increase the exposure
of at-risk groups, which is why “trust in science” and evidence-based
recommendations are of key importance. The WHO has already joined
forces with the UK Government for instance to raise awareness of misinformation
around Covid-19 and encourage individuals to report false or misleading
content online.
121. Following the US President’s decision to withdraw from WHO,
“trust in institutions” is one of the biggest challenges, which
I shall also discuss below.
122. “Trust in each other” is also a key factor in multilateral
relations. When dealing with a threat, be it a natural disaster,
climate change, migration challenges, a war or a pandemic, the multilateral
system can only work on some measure of trust and common purpose.
A limited number of countries have the power to reach out and generate
that kind of trust and most of them are in Europe.
123. Regrettably, the UN Secretary General’s call for a global
ceasefire of 23 March, which underscored the urgent need for unity
and mutual support in the battle against a common enemy
Note has not been followed.
His call was echoed by the UN Security Council
Resolution 2532 unanimously adopted on 1 July 2020, demanding “a general
and immediate cessation of hostilities in all situations”.
124. For every news report of a cease-fire or breakthrough in peace
talks there is a corresponding story that details a deteriorating situation.
Note In conflict-affected countries or
countries emerging from conflicts, the pandemic has added another
layer on top of multiple existing layers of crisis, with armed groups
taking advantage of the global distraction, difficulties in peace-keeping
and crisis management operations, excessive use of force against
civilians, and civil unrest sparked by deteriorating socioeconomic
conditions.
NoteNote
125. A new wave of extremism represented an additional challenge
calling for close co-ordination by all States. According to the
EU Counter-terrorism Coordinator, Gilles de Kerchove, both right-wing
and left-wing extremists exploited the crisis to achieve their goals.
Note During lockdown people
also spend more time on the internet, which represents an opportunity
for extremists’ propaganda.
Note Worryingly,
some radical religious leaders have also interpreted the pandemic
as a sign of “divine retribution”
Note and encouraged their
followers to fulfil acts such as Jihad to calm the divine wrath.
Note
4.3 WHO’s action in dealing with the
crisis and pandemic politics
126. Faced with an unprecedented
health crisis in the country resulting in more than 170 thousand
deaths, the US Administration has fiercely criticised WHO and, on
29 May, President Trump announced that he was terminating the US
relationship with WHO, as "China has total control over the World
Health Organization".
Note On 6 July, President Trump notified the
Secretary-General of its withdrawal from WHO, effective on 6 July 2021.
Note
127. The power distribution among countries may have indeed influenced
the behaviour and reactions by WHO and there are lessons that can
be learnt to prepare for future crises and improve the functioning
of the international system. Questions regarding the handling of
the crisis by WHO have already been analysed in the
report by the Committee on Social Affairs, Health and Sustainable
Development but the politics surrounding the pandemic
Note is undoubtedly also
of interest to our committee.
128. Following calls from most of its member States, WHO has agreed
to launch an independent probe into how it managed the international
response to the coronavirus, including the response by governments.
The “comprehensive evaluation,” sought by a coalition of African,
European and other countries, is intended to review “lessons learned”
from WHO’s co-ordination of the global response to Covid-19, but
will not look into contentious issues such as the origins of the
new coronavirus. The Australian Foreign Minister also called for an
independent global review of WHO, criticising the lack of transparency
of Chinese reporting. However, she carefully stressed that Australia’s
“concerns about WHO’s management in Geneva should not detract from
this important and life-saving work”.
Note
129. WHO has notably been criticised for its late declaration of
a public health emergency of international concern.
NoteNote Hence, it is important to clarify
whether earlier action might have influenced the current situation,
Note which is something
that will need to come through in the reviews.
130. One should bear in mind that following WHO’s alarm on the
H1N1 outbreak in 2009 and its sudden decrement in the death toll,
many, including our Assembly,
Note severely criticised WHO for ringing
the alarm mistakenly.
Note Perhaps that experience made WHO more cautious
and conservative.
131. Dr David Nabarro, WHO Special Envoy for Covid-19, who kindly
accepted my invitation to exchange views via videoconference on
15 June 2020, stressed that most of the people who worked in this
area have no regrets because the consequences of slowness vastly
outweigh the disadvantage of being accused of raising the alarm
early. In his view, on the basis of the available information from
Mexico, WHO did right and it was only overtime that it turned out
that the overall threat of H1N1 was not so serious, although the
untold story is that it had a harsh impact on indigenous communities
and also on pregnant women.
132. Furthermore, WHO has been more and more reliant on local contacts,
diplomatic channels and the internet to locate potential outbreaks,
all of which has made the organisation less reliant on national governments
for information. Over the past years, that strategy has proven its
worth. In November 2002, when the Chinese Government became aware
of the first cases of a novel respiratory disease, later named SARS, it
failed to alert WHO. However, WHO staff were monitoring Chinese
medical message boards and news media and became aware of what was
then thought to be an atypical pneumonia outbreak.
Note
133. Despite those unofficial channels, WHO lacks authority to
monitor the health situation in all member States. While the Chinese
authorities were reportedly banning communication of data on the
Covid-19 outbreak,
Note WHO was praising Beijing in public
but seemingly pressing it behind the scenes over a weeklong delay
in publishing the genetic sequence of the virus, which had been
decoded by three government labs, according to a report released
on 3 June 2020 by the Associated Press.
Note
134. Dr Nabarro, during a BBC interview in April, also clarified
that WHO is not a “global international health inspectorate” and
cannot force its member States to release information. He believed
that Mr Tedros Adhanom, WHO Director General, praised the ways in
which the Chinese Government responded to the outbreak when they
realised what was going on, which was the right thing to do. WHO
is not enabled to call out countries and criticise them, instead,
it identifies successful approaches that are most useful to interrupt
disease transmission. WHO can only advise, provide guidance and
review but cannot instruct.
135. For instance, WHO can only discourage the practice of “wet
markets” selling live wild animals contributing to an increased
risk of zoonotic disease but cannot ban them. WHO is governed by
194 world’s nations who only have the power to redesign the mandate
of the organisation and give it more power, or not. “The way in
which the international system works is by consent and by co-operation.
During an emergency all leaders must work together to maximise the
well-being of people”, Mr Nabarro stressed.
Note
136. The treaty governing the powers of WHO, the International
Health Regulations (IHR), needs
a strong support by all European member States, with a view to encouraging
continued co-operation at international level and a further revision
of the IHR in the post-Covid-19 era, for better preparedness and
a more efficient early alert and response system.
137. Mr Charles Clift, speaking at the committee meeting of 23
June, stressed that “there are things that WHO could, with hindsight,
have done better and WHO member States have agreed this will be
the subject of an independent enquiry at the appropriate time”.
He also argued that “national actions (or inactions) are the chief determinants
of success (or failure) and, in the multilateral sphere, it is their
job to shape relevant institutions to be most effective. Blaming
the institutions they themselves have created misses the point”.
Note
138. While the US may appear to turn its back to multilateralism,
China attempts to shape the system around values and interests that
Europeans do not share.
Note The US and China, as some
other players, are also competing to achieve the geopolitical benefits
of being the first country to develop a vaccine.
139. It should be noted that the position taken by the US administration
is not necessarily a reflection of the consensus of American public
health’s or even legislators’ opinion, which is why I believe it
is important to keep an open channel of communication between our
parliaments and US experts and elected representatives, also with
a view to the November presidential elections.
140. Power-based fights are not merely restricted to the US and
China. Other States are starting to use the fight against the pandemic
as a weapon against each other.
141. Instead States that successfully handled the pandemic, such
as Australia, Austria, Denmark, Germany, Iceland, Israel, New Zealand
and Norway, displayed early preparation and strong co-operation
with the scientific community and proved that testing, contact tracing
and a functioning health care system can defeat the virus with low
casualties. Overall, these countries appear to have succeeded in
containing the pandemic because they reacted early and swiftly.
Not all of them introduced stringent lockdowns, but all implemented aggressive
testing and tracing programmes.
Note
142. Hong Kong, Singapore, South Korea, Taiwan also saw what was
headed their way from China in the early days and remembered what
happened two decades ago with SARS. They locked down their immigration hardest
and soonest, deployed public health workers to follow up contacts
of cases, got their hospitals shored up, and started publishing
clear and consistent information and data.
Note
143. Focus should therefore be rather placed on a science-based
global approach to health crises and on human right-based values
to shift the current situation from rivalry among powers to an opportunity
for multilateral co-operation. Liberal democracies work when they
have democracy and human rights at the heart of their value system.
144. Council of Europe member States, and their elected representatives
in particular, have a crucial role to play in seeking and maintaining
a united global focus on pandemic preparedness and response, and
in reaching out to other States. If European consensus is wide and
strong, it would leave much less space for countries like Iran,
Syria, Cuba or Venezuela to promote their viewpoint. The World Health
Assembly Resolution of 19 May 2020, stressing global commitment
to the Covid-19 response, was co-sponsored by more than 130 countries
and adopted by consensus, thanks to the powerful leadership of European
leaders, who teamed up with Australia, New Zealand, India, Canada
and a number of other countries.
Note
145. As the primary responsibility for public health lies with
national authorities, it is our role, as members of national parliaments,
to also carefully scrutinise the way healthcare systems coped or
failed to cope with the pandemic and learn lessons for the future.
Sharing experiences and best practices in a multilateral platform such
as that provided by the Parliamentary Assembly can only help us
in this endeavour so as to enhance preparedness, resilience and
response for the future.
Note
146. Furthermore, over the last 60 years these zoonotic diseases
have increased globally, and new zoonotic pathogens result from
human-animal interaction, deforestation and land use changes, factory
farming and trafficking in wild animals, all increasing the risk
of infectious disease spreading. European countries must take action
to address human, animal and environmental health holistically and
minimise the risk of future epidemics. For these reasons, the Bern
Convention on the Preservation of the European Wildlife and Natural Habitats
(ETS No.104) should be accessed and ratified by all countries across
the world, particularly in light of the UN Sustainable Development
Goals.
147. Speaking at the videoconference meeting of the Assembly’s
Standing Committee on 26 June 2020, WHO Director General, Mr Tedros
Adhanom, stressed that the current greatest threat was complacency,
since “nobody is safe until we are all safe”, but also the “lack
of world solidarity and leadership”. He proposed three concrete
steps for WHO and the Parliamentary Assembly to take together. Firstly,
initiating a structured dialogue between the two bodies. Secondly,
seeking the Assembly’s support beyond the immediate context of the
pandemic. Thirdly, calling for continued leadership by Europe in
a spirit of solidarity.
148. This report is also aimed at supporting these calls, also
in the spirit of
Resolution
2329 (2020) and
Recommendation
2174 (2020) “Lessons for the future from an effective and rights-based
response to the Covid-19 pandemic” of 26 June, which also calls
for reform of WHO by making it independent of voluntary contributions
to fulfil its essential functions, giving it the power to visit
member States unannounced in a public health crisis, strengthening
the International Health Regulations, and ensuring it faced independent,
ideally parliamentary, oversight.
Note
4.4 A common European approach to vaccination
149. As stressed more recently by
Mr Tedros Adhanom “we need to prevent vaccine nationalism”. Diagnostics,
therapeutics and vaccines must be available to everyone, everywhere,
starting with those at highest risk.
Note
150. I welcome the “Blueprint for an EU vaccination for Covid-19”
agreed on 21 July by the EU Health Security Committee, which should
be considered for the preparation of national or regional vaccination
plans in the European Union.
Note
151. However, all EU and Council of Europe member States should
go a step further, opening up to the possibility for all European
States, EU and non-EU members alike, to adopt a common European
approach, so that every one of Europe’s 830 million citizens can
benefit from equal protection from Covid-19. This is especially
relevant in view of the promising national efforts of several European
States to develop a vaccine.
152. The Council of Europe is already playing an important role
as the European Directorate for the Quality of Medicines and HealthCare
(EDQM) is providing Covid-19 vaccine developers with free access
to quality standards applicable in Europe and selected training
materials.
153. The pandemic is therefore also an opportunity to give a new
impetus to the process of European construction by focusing on mutual
benefits, setting aside national and geopolitical agendas and deepen European
co-operation for all 47 member States.
5 Conclusions
154. The Covid-19 pandemic is the
greatest public health crisis the world has faced in recent history.
It has caused unprecedented multi-faceted, wide-ranging and lasting
consequences for the social, economic, and political lives of our
societies.
155. The pandemic has been a crash test for the functioning of
democratic institutions at national level, including the system
of checks and balances, the work of parliaments and the holding
of elections. However, democracy, human rights and rule of law cannot
be allowed to become the collateral damage of the pandemic. No public
health emergency may be used as a pretext to destroy democratic acquis. It is therefore our duty
to remind our member States that the response to Covid-19 must comply
with the fundamental values and principles upheld by the Council
of Europe.
156. On the global scale, the pandemic has aggravated some worrying
trends in international relations and has revealed the shortcomings
of international health governance system. Genuine and constructive multilateralism
is capital to anticipate and address real threats and to restore
confidence in intergovernmental institutions, as well as to tackle
the far-reaching health, economic, political, infrastructural and
social implications of the current crisis. In this context, multilateral
organisations, such as WHO, are central to finding common solutions
to common problems and require support from all member States, including
proper funding to act swiftly and issue recommendations based on
evidence.
157. The draft resolution calls, inter
alia, on member and observer States, as well as States
whose parliaments enjoy observer or partner for democracy status,
to respect the system of democratic checks and balances and enumerates
a number of principles which States are called upon to apply when
facing a public health emergency and when deciding whether to hold
or postpone elections during such an emergency.
158. It also calls on the parliaments of member and observer States,
as well as States whose parliaments enjoy observer or partner for
democracy status, to take stock of their experience during the pandemic
and use it to prepare for any future crisis by taking a number of
measures which it enumerates.
159. In the face of the pandemic, the draft resolution considers
that the international context must shift from rivalry among powers
to an opportunity for strong and effective multilateral co-operation
beyond partisan cleavages. It also calls on member and observer
States to ensure that diagnostic tools, treatments and vaccines
are available and affordable to everyone, starting with the most
vulnerable groups, among Europe’s 830 million citizens.
160. For its part, the Assembly should develop further its co-operation
with national parliaments by encouraging national delegations to
share good practices and organising peer reviews on various aspects
of addressing the consequences and implications of the pandemic, inter alia, through the organisation
of parliamentary hearings with the participation of Council of Europe
experts, with a view to developing viable and sustainable solutions
and approaches to address similar crisis situations in future.
161. Finally, the draft recommendation welcomes the action taken
so far by the Council of Europe bodies and institutions and proposes
concrete action by inviting the Committee of Ministers to:
- build on national experiences
and good practice in responding to the Covid-19 pandemic with a
view to developing a checklist of parameters to enable the fullest
democratic participation possible in situations of emergency;
- prepare a recommendation with guidelines on multilevel
governance and response to emergencies.
