Pandemic Parliamentary Oversight of Delegated Legislation: Comparing the Performance of Westminster Systems
The COVID-19 pandemic is testing parliamentary systems of governance across the world, especially in relation to oversight of executive actions. Observers in multiple jurisdictions have already noted the proliferation of delegated legislation during the pandemic and the shortcomings in legislative oversight of the same. To date, however, no close analysis has been conducted of the way in which legislative oversight mechanisms have broken down during the pandemic. This paper provides such an analysis, using examples from Westminster systems adopting the'legislative model'of providing extraordinary powers. Looking at individual examples from Australia, New Zealand and the United Kingdom, the analysis seeks to identify and explain the failures, and relative successes, indifferent mechanisms for parliamentary oversight, including parliamentary scrutiny committees (pre-existing and ad hoc), disallowance, and sunset clauses. Although primarily descriptive, the comparative approach analysis permits preliminary conclusions to be drawn as to the way each jurisdiction may improve its methods of parliamentary oversight of delegated legislation. These comparative lessons will be of use both during and beyond the pandemic.
The Anti-Defection Provision Contained in the Constitution of Bangladesh, 1972, and Its Adverse Impact on Parliamentary Democracy: A Case for Reform
It is a fundamental feature of parliamentary democracies for parliament to act as a bulwark against executive power so as to ensure the maintenance of the rule of law. In order for parliament to perform its oversight functions, it is imperative that members of parliament enjoy independence from the stranglehold of their political parties while scrutinizing the actions of the executive and deliberating about national issues facing the electorate. In Bangladesh, the founding fathers, in order to avoid the troubling experiences of unprincipled defections of MPs during the past union with Pakistan, which adversely affected the stability of governments, incorporated an anti-defection provision in Article 70 of the Constitution of Bangladesh, 1972. However, the anti-defection provision contained in the Constitution in endeavoring to curb unprincipled defections has adversely impacted the independence of MPs by compelling them to blindly comply with the directives of their parties in the Parliament, thereby impeding its competence to act as a check on the powers of the executive. Consequently, the current government of Bangladesh Awami League by dint of Article 70 has persuaded the Parliament to incorporate far-reaching amendments in the Constitution, which in turn have enabled the regime to essentially substitute the rule of law with rule of man in violation of the guarantees contained in the Preamble of the Constitution. Thus, the presence of the anti-defection provision in the Constitution has impeded the institutionalization of the Parliament. Accordingly, this Article puts forward concrete recommendations for liberalizing the anti-defection provision contained in Article 70 in order to ensure the maintenance of an appropriate balance between ensuring the stability of the political system against unprincipled defection and of simultaneously safeguarding the independence of MPs to ensure the accountability of the executive branch of government.
Accountable Lawmaking: Delegated Legislation & Parliamentary Oversight during the Pandemic
In responding to the COVID-19 pandemic, democratic states around the world have massively expanded executive powers. Much of this transfer of power has occurred by the delegation of legislative power from parliament to the executive. As will be explained, delegated legislation is a process of executive law-making whereby government ministers, departments, agencies or other officers are empowered to make regulations with the force of law. Although these powers can arguably be justified in some circumstances because of the need for swift and decisive action, there is room for reaonable debate about the scope, duration and conditions of such executive powers. Concerningly, scholars have demonstrated that the checks and balances that ordinarily constrain constitutional governance have come, during the pandemic, to tolerate many unbounded executive powers.
While some democracies have struggled to provide even a modicum of parliamentary oversight of executive actions during the pandemic, other countries have managed to provide space for the examination of executive decision-making. This policy brief analyses trends in the working and monitoring of delegated legislation in Australia, New Zealand, and the United Kingdom during the pandemic. It focuses on how the pandemic has affected parliamentary oversight of executive actions and assesses how institutional responses have conformed to democratic standards. The identification of points of difference within similar contexts appears most likely to reveal novel but transposable inter-jurisdictional learning.