Routledge Handbook of Law and the COVID-19 Pandemic

Joelle Grogan, Alice Donald, Joelle Grogan, Alice Donald

• Publisher: Routledge
• Year: 2022
• eBook ISBN: 9781000582130
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

The COVID-19 pandemic not only ravaged human bodies but also had profound and possibly enduring effects on the health of political and legal systems, economies and societies. Almost overnight, governments imposed the severest restrictions in modern times on rights and freedoms, elections, parliaments and courts. Legal and political institutions struggled to adapt, creating a catalyst for democratic decline and catastrophic increases in poverty and inequality. This handbook analyses the global pandemic response through five themes: governance and democracy; human rights; the rule of law; science, public trust and decision making; and states of emergency and exception. Containing 12 thematic commentaries and 25 chapters on countries of diverse size, wealth and experience of COVID-19, it represents the combined effort of more than 50 contributors, including leading scholars and rising voices in the fields of constitutional, international, public health, human rights and comparative law, as well as political science, and science and technology studies. Taking stock after the onset of global emergency, this book provides essential analysis for politicians, policy-makers, jurists, civil society organisations, academics, students and practitioners at both national and international level on the best, and most concerning, practices adopted in response to COVID-19 – and key insights into how states and multilateral institutions should reform, adapt and prepare for future emergencies.

PART I
Governance and Democracy

DOI: 10.4324/9781003211952-1

Overview

Democracy was in global retreat even before COVID-19, and the pandemic shrunk and fractured the global map of democracies still further. The burgeoning of authoritarian governance, actively hollowing out liberal-democratic institutions and eschewing expertise, was turbo-charged by the pandemic, as many governments seized the chance to evade the scrutiny of legislatures, courts, independent media and popular mobilisation. Yet the rollback of democracy and good governance has not been relentless, as Part I of this volume attests. The two thematic commentaries, and five chapters analysing New Zealand, China, the United Kingdom, the United States and Singapore, identify grounds to despair, certainly, but also opportunities for a rejuvenation of democratic governance.

In the first commentary, Tom Gerald Daly offers an ambitious global appraisal of institutional and geo-political responses to the pandemic. He detects no single fault-line between supposedly efficient autocracies and democracies hampered from taking decisive action by the need to respect constitutional norms. Nor is there a sharp distinction between the success of the pandemic response in countries in the Global South or Global North, or in younger and older democracies. Rather, Daly detects multiple fault-lines based on states’ capacity, the presence or absence of effective and rational governance, and levels of public trust in authority. If the pandemic was a ‘tipping point’ towards autocracy and ‘anti-truth’ politics, Daly nevertheless sees grounds for optimism. He points to electoral innovation, hybrid parliaments and an explosion of grassroots activism as providing opportunities to rethink, regenerate and reclaim democracy, both at the national level and in geopolitical alliances and institutions.

Jerome Amir Singh maintains the focus on global governance in his commentary on COVID-19 vaccine manufacture, procurement, disbursement, access and uptake. He identifies four structural factors that vitiate individual autonomy to access vaccines at the grassroots level: geopolitics; corporate self-interest and sovereign fiscal constraints; sovereignty and governance; and protectionism and nationalism. As long as vaccines remain an “intellectual property battleground” and “geopolitical currency”, Singh argues, states will continue to flout their obligation to guarantee the right to the highest attainable standard of health.

In the first country-based analysis, Dean R Knight charts New Zealand’s success at stamping out transmission of COVID-19 through hard and swift lockdowns, border control and other public health measures, while simultaneously forestalling economic dislocation and preserving – and even enhancing – democratic accountability. Knight proffers a ‘relational’ or ‘dialogic’ conception of accountability. This seeks to understand how the government publicly accounted for its aggressive elimination strategy and use of emergency powers, and how it was “interrogated” by Parliament, the courts, the media and civil society. Knight concludes that the executive’s use of power was subject to meaningful checks, and documents how lessons were learned and applied from this virtuous cycle of dialogue.

China’s response to the exceptional challenge of COVID-19 was, unsurprisingly, devoid of such democratic constraints, and, indeed, was not ‘exceptional’ in the sense that it reflected endemic features of Chinese law and governance. Jacques deLisle and Shen Kui venture that the initial, fatally delayed and dysfunctional response to the pandemic exposed the conflicting and ambiguous allocations of authority and accountability along fragmented functional (vertical) and geographic (horizontal) lines within China’s vast and multi-layered governance system, resulting in decisions made in bureaucratic ‘silos’. Later in the pandemic, the centralised state mustered its formidable capacity to mobilise resources and shape and constrain citizens’ behaviour, creating a narrative of ‘success’ that looks set to stifle any calls for transformative reform to prevent or prepare for future pandemics.

Although on a less monumental scale, fragmentation was also a feature of the United Kingdom’s response to the pandemic, not only in the early stages but throughout. Joelle Grogan analyses how COVID-19 exposed fractures in the constitutional settlement of power between government, Parliament and the devolved legislatures. Largely unchecked executive dominance; stop-gap and U-turn policymaking; severe and not always rationally and transparently justified restrictions; and blurred distinctions between law, guidance and advice were all lamentable features of the UK’s response. They amounted to an absence of governance – and the “(un)governed” UK as a consequence experienced one of the highest per capita mortality rates in Western Europe.

The fatal repercussions of executive action – and inaction – were starkly evident, too, in the United States under President Trump. Mark A Graber characterises Trump as uninterested in science – or in governing. The populist attack on evidence-based politics and constitutional democracy in the US resulted in a policy too often based on ideology, partisanship and wishful or fantastical thinking rather than on scientific consensus. Institutions that might have blunted the populist challenge had been captured before the pandemic or were captured during it, notably the Supreme Court. The election of President Biden restored rationality and kickstarted vaccine distribution. But, Graber argues, the health of America’s body politic remains in peril from partisan battles over voting rights, among other issues.

The resilience of Singapore’s political and legal institutions was tested during the pandemic, especially as it held elections in July 2020. Shirin Chua and Jaclyn L Neo suggest that Singapore escaped the global trend towards democratic regression, as the government rejected the path of unchecked emergency powers and the pandemic presented opportunities for democratic consolidation. These took the form of greater institutionalisation of opposition politics; the deepening of a “shared epistemic articulation” of constitutional democratic workings; and stronger civil society engagement with the state. Chua and Neo urge vigilance, however: democratic gains may be fragile and Singapore’s low-wage migrant workforce continues to live precariously and under disproportionate restrictions. If the pandemic is to catalyse true democratic renewal, they argue, the most marginalised must share the fruits and everyone must “[interrogate] what it means to live together and what we owe to one another”.

1 The Pandemic and the Future of Global Democracy

Tom Gerald Daly

DOI: 10.4324/9781003211952-2

1. Introduction¹

1 All websites accessed on 24 June 2021.

If global democracy were a patient, it was already ailing when the United Nations declared a global health emergency in January 2020. Democracy assessment organisations had been registering a 15-year trend of declines in the quality and persistence of liberal democracy worldwide; defined here as a political system comprising at minimum elections, core democratic rights and meaningful constraints on government.² Democracies were struggling to address the diffuse but intensifying challenges of hyper-polarisation, political fragmentation, yawning economic inequality, disengaged and distrustful electorates, a distorted and fractured information landscape hollowing out the shared epistemic basis and trust fundamental to democratic society, and most acutely, the proliferation of neo-authoritarian governments actively dismantling liberal-democratic systems or at least challenging their liberal components; especially counter-majoritarian constraints such as independent courts.³ They were also facing a re-shaped geo-political environment with the rapid rise of China as an authoritarian superpower, and the increasing employment of ‘sharp power’ against liberal democracies by illiberal governments.⁴ That said, counter-trends of democratic innovation and reinvention were also gathering momentum, epitomised by the spread of citizens’ assemblies.⁵

2 See e.g. V-Dem Institute, Democracy Report 2021: Autocratization Turns Viral (10 March 2021); and Freedom House, Freedom in the World 2021: Democracy under Siege (3 March 2021). 3 See Tom Gerald Daly, ‘Democratic Decay: Conceptualising an Emerging Research Field’ (2019) 11(1) Hague Journal on the Rule of Law 9. 4 Larry Diamond, Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency (Penguin Press 2019). 5 See Stephen Elstub and Oliver Escobar, ‘Defining and Typologising Democratic Innovations’ in Stephen Elstub and Oliver Escobar (eds), Handbook of Democratic Innovation and Governance (Edward Elgar 2019).

The pandemic’s impact on global democracy might now be viewed as a burgeoning cross-disciplinary sub-field of its own.⁶ This chapter, drawing on contributions to the Verfassungsblog symposia in 2020 and 2021,⁷ seeks to reflect on the future of global democracy and capture key trends and developments in institutional and geo-political responses through three questions: has COVID-19 helped to rehabilitate liberal democracy’s reputation as a political system by revealing effectiveness in crisis? Has the pandemic crystallised a dramatic redrawing of the democratic atlas? Does the hardening of global tensions between China and competitor states during the crisis risk an unhelpful reframing of global democracy as merely an ‘anti-China club’?

6 See, for instance, the over 3,000 items curated on COVID-DEM (www.covid-dem-tracker.org), including a range of books, e.g. Miguel Poiares Maduro and Paul W Kahn (eds), Democracy in Times of Pandemic: Different Futures Imagined (Cambridge University Press 2020); David Seedhouse, The Case for Democracy in the COVID-19 Pandemic (SAGE Publications 2020); Stefan Kirchner (ed), Governing the Crisis: Law, Human Rights and COVID-19 (Lit Verlag 2021); Linda Hantrais and Marie-Thérèse Letablier, Comparing and Contras...

Table of contents

• Cover
• Half-Title
• Endorsements
• Title
• Copyright
• Dedication
• Contents
• Contributors
• Foreword
• Preface
• PART I Governance and Democracy
• PART II Human Rights
• PART III The Rule of Law
• PART IV Science, Public Trust and Decision-Making
• PART V States of Emergency and Exception
• BEYOND THE PANDEMIC
• Index