Legislatures in the COVID-19 Crisis

Ittai Bar-Siman-Tov

Bar-Ilan University

Legislatures have essential roles to play in crises, including passing emergency legislation, appropriating needed funding, providing representation, accountability and legitimacy, ensuring crucial oversight and cabining the executive from abusing the crisis. As the COVID-19 crisis was marked by executive aggrandizement and far-reaching rights-limitations in many countries around the world, it was crucial to the health and wellbeing of democracy itself that the legislature, the vital organ of democracy, would fulfil its role. Yet, COVID-19 posed an unprecedented challenge to legislatures worldwide, as it threatened their very ability to operate. For the past year and a half, my colleagues and I have engaged in an extensive multi-staged and multi-methods research project exploring how legislatures responded to this global challenge. This brief post offers a birds-eye view of our studies and some of our major findings. 

The research project began with a quick preliminary comparative overview of legislative activity at the beginning of pandemic. This was followed by a comprehensive theoretical study analyzing the questions of how and why legislatures are challenged by the COVID-19 pandemic. An analysis of the various ways in which features of this pandemic and its control measures, its risk perceptions, and the state (or sense) of emergency associated with COVID-19, interact with the institutional and demographic features of legislatures, elucidates why COVID-19 poses a unique challenge for legislatures. The general analysis becomes more compounded in countries in which a pre-existing political crisis is added to the pandemic-related challenges.

Based on this preliminary study and theoretical basis, Profs. Waismel-Manor, Rozenberg, Levanon, Benoît, Ifergane and I formed an international multi-disciplinary research team to conduct a more extensive and thorough empirical study of how legislatures around the world responded to these challenges. We developed novel indexes for measuring the extent of parliamentary activity (ParlAct) and use of technology (ParlTech) during COVID-19, and generated a novel database that captures the extent of legislative activity and use of technology during the initial response to the COVID-19 shock in all 159 countries with a population of over 1,000,000 people. Our indexes and dataset are available here for all to use. We then conducted a large-scale quantitative statistical study on the factors that determine the extent of parliamentary activity during the first wave of COVID-19. 

The quantitative empirical study on the extent that legislatures maintained their operation during the pandemic was complemented with two collections of qualitative in-depth studies and country-reports (edited by Dr. Cormacain and me); one dealing with how legislatures operated during COVID-19 and the other analyzing the content of parliaments’ legislative responses to COVID-19. Additional studies focused on in-depth exploration on the operation of the Israeli Parliament during the pandemic: its operation in light of the combination of the COVID-19 crisis and political crisis; its legislative approach and particularly its use of temporary legislation to regulate COVID-19 (together with Shtauber & Harari-Heit), and its operation vis-à-vis other governmental institutions as part of a broader survey of Israel’s legal response to COVID-19 (together with Albin, Gross, Hostovsky-Brandes, and additional contributors).

Overall, several general findings and conclusions could be shared from these studies. COVID-19 indeed poses an exceptional set of challenges for legislatures. To a large extent, no legislature was immune to these challenges, but there were great variations in how legislatures in different countries responded to them. One of our surprising findings was that there was no apparent relation between the severity of the disease in a certain country and the decision to close parliament or limit its operation. Our findings indicate that there is a real danger that parliaments will be closed or restricted due to a disproportionate response, either due to excessive risk perceptions that lead to unintentional overreaction, or due to intentional exploitation of the crisis as an excuse to silence parliaments. We also found that the use of technological devices in lieu of physical presence was instrumental in mitigating these risks, particularly in partially-free countries and frail democracies. Beyond that, there are more complex and less clear effects that result from intricate interactions between factors such as regime type (and degree of democracy), populism, and other institutional features (such as the parliamentary nature of the regime, the strength of the parliament, and the coalized type of governments). 

To be sure, there have been instances of legislatures overreacting to the crisis, at least in their initial response, and abdicating their roles or performing them poorly.  Yet, there have also been many positive examples. Legislatures in many countries continued to operate throughout the pandemic, and continued to perform their law-making role and legislative oversight. Many legislatures have proven their resilience as well as their ability to adapt. And in some countries, parliaments have actually performed quite admirably. In fact, COVID-19 turned out to be both a challenge and an opportunity for legislatures. It has expedited institutional innovation and technological advances in legislatures. It heightened appreciation by legislators, by the media, by the public, and by courts of the importance of parliaments and of legislative oversight. In some countries, the crisis has led to more parliamentary activity and more vigorous legislative oversight than usual; and in some, it contributed to increased appreciation of the importance of broad parliamentary participation, including of the opposition. 

Generally, the crisis exposed and highlighted strengths and weaknesses of legislatures. We suggest that in some ways legislatures are like humans in their vulnerability to COVID-19: the danger of becoming casualties of the pandemic is very much dependent on the presence of pre-existing conditions. As the ongoing COVID-19 crisis continues and after it will be over (hopefully, sooner rather than later), there will still be much need for further studies that would explore the long-term effects of COVID-19 on legislatures. Hopefully, these studies would contribute to building the resilience and adaptability of legislatures to pandemics and crises, and ultimately, to the wellbeing of democracy itself.

Dr Ittai Bar-Siman-Tov is a Senior Lecturer at Bar-Ilan University Faculty of Law and Co-Chair of the Israeli Association of Legislation. The author gratefully acknowledges support by research grants from The Israel National Institute for Health Policy Research and Volkswagen Foundation.

Suggested Citation: Ittai Bar-Siman-Tov, ‘Legislatures in the COVID-19 Crisis’  IACL-AIDC Blog (21 September 2021) https://blog-iacl-aidc.org/covid19-future-constitutionalism/2021/9/21/legislatures-in-the-covid-19-crisis/.