Public Accountability in the Pandemic: Covid-19 and State Governance

David Kenny, Trinity College Dublin

 

The extraordinary circumstances of the Coronavirus pandemic have raised unprecedented challenges for state governance. Responding effectively to Covid-19 and curbing its spread has required unprecedented restrictions on movement and conduct from the citizenry, and unprecedented powers being given to the state to impose and enforce these restrictions. This is something we have seen around the world. One of the biggest challenges we face now is how to oversee and control that power, lest it erode our democratic institutions.

 

In Ireland, the pandemic struck at an unfortunate time. We had just had a general election, producing a divided Dáil, with no clear route to government formation. The pandemic required immediate and radical action in the form of two pieces of emergency legislation to enable an adequate response. This had to be done with great speed, both to enable an effective response and because the Seanad was about to dissolve for its own election. It handed over a vast amount of power to the government—in particular the Minister for Health—to make regulations to combat the spread of the virus and ameliorate the devesting effects of the virus (and the amelioration measures) would have on workers and businesses.

 

However, in taking these essential measures, we have created an acute need for accountability. With the vast powers given to the government, and—informally and by proxy—to various groups that advise the government, constant and rigorous oversight is needed. It is essential that there are mechanisms to ensure that these powers are not used irresponsibly, to the detriment of citizens, and are used in accordance with the democratic will. Yet the present circumstances have conspired to create a distinct lack of accountability.

 

First, a huge amount of influence and de facto power has been placed in the National Public Health Emergency Team (NPHET). This group of government advisors has been massively influential in setting up the lockdown measures, and providing for their relaxation. In the end, this group merely advises the government, and the government makes decisions about how to act. But as the lockdown has continued, there have been clashes between the government and the NPHET. The government allegedly acted against NPHET advice in changing the advisory rules for “cocooning” over 70s. Ministers challenged the Chief Medical Officer Dr Tony Holohan on the need for ongoing 2-metre social distancing when other European countries have made do with a 1-metre rule. Dr Holohan vigorously resisted any premature change to this rule.

 

NPHET is an unelected body of experts, and while it is important that expert evidence is followed, it is also important that this expertise is mediated by and accountable to democratic oversight. More transparency about the role of NPHET and its working relationship to the government is necessary to enable this.

 

A second problem is that the government is an acting government. The Constitution provides that Ministers continue in their role until their successors are appointed. But with no sign of a new government being formed, the government now overseeing the crisis was not democratically appointed by the new Dáil. Several Minsters lost their seats in the February election. While this is technically constitutionally acceptable, it is democratically questionable and a cause for concern, particularly the longer it drags on.

 

Thirdly, the government’s accountability to the legislature—the central constitutional pillar of oversight of government—is severely lacking at present. The government has voiced a (to my knowledge unprecedented) constitutional argument that, because they are acting Ministers, they are not accountable to the Dáil in the same way as ordinary Ministers, and do not have the same obligation to answer questions in the Dáil. There is, as far as I can see, absolutely no basis for this claim: acting Ministers have the same powers as ordinary Ministers, with an additional need for oversight because of a questionable democratic mandate. Why would this not come with at least the same obligation to answer to the legislature for use of their powers?

 

Fourthly, the ability of the Dáil to scrutinise the conduct of the government at this crucial time is lacking for another reason: the Dáil is very limited in its sittings. Due to social distancing requirements, only a tiny number of deputies can be present in the Chamber at any one time. While large venues such as the Convention Centre can be used occasionally—to elect a Taoiseach, say—the whole house cannot regularly meet in person. Nor can committees conduct their work as normal. A special Covid-19 Committee meets in the Dáil Chamber in a socially distant manner, but it has a large brief and limited meeting time. The regular committees of the House are effectively not working at all. This means that we are deprived of another key means of government accountability at a time when we need it the most.

 

Fifthly, and relatedly, the Oireachtas authorities have decided that, despite this problem with physical meetings, the Oireachtas and its committees cannot sit remotely. This is based on a set of constitutional objections, such as that the legislature must sit in a particular physical place and that members and witness do not enjoy privilege unless physically in such a place. Zoom meeting rooms won’t cut it. I think these arguments are simply wrong, based on an overly literal interpretation of the Constitution. But there is no sign of any change in this stance, and thus no sign of the Dáil getting back to work overseeing the government.

 

Finally, and importantly, the Attorney General has advised that the Oireachtas cannot pass legislation at present. Though this view in contested by some, the AG has said that since the 11 senators that the Taoiseach appoints cannot be appointed until a new Taoiseach is chosen, the Senate is constitutionally incomplete, and cannot legislate in the absence of a full complement of members. I lean in favour of this view, but it has the effect of tying the hands of parliament. If the Oireachtas wishes to give new powers to the government, or take away/limit the powers given in the recent emergency legislation, it cannot. It is hamstrung and unable to perform its core function.

 

All this adds up to an unfortunate conclusion: that we have a greater need than ever for democratic oversight of government—and public agencies/government advisors like the civil service, the Gardaí, and NPHET—and a much lesser ability to provide it. This situation would be greatly improved by the election of a government, but it is unclear when or if that might happen. Another election—assuming it could be safely organised in the autumn, perhaps—would still leave months of unaccountable governance by acting ministers. Electing a temporary minority government—perhaps with reappointment of as many of the current Ministers as possible—would enable the appointment of senators so that legislation could be passed, and restore proper ministerial accountability to the House. It is not clear that there is appetite for any such move. But something has to give; the status quo is unsustainable.

Dr David Kenny is an Assistant Professor of Law at Trinity College Dublin, where he teaches and researches Irish and comparative constitutional law. He is a member of the COVID-19 Law and Human Rights Observatory.

 

Suggested Citation: David Kenny, 'Public Accountability in the Pandemic: Covid-19 and State Governance' COVID-19 Law and Human Rights Observatory Blog (2 June 2020)

 

http://tcdlaw.blogspot.com/2020/06/public-accountability-in-pandemic-covid.html

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