The current pandemic caused by the Corona virus has had a decisive impact to all areas of life: from moving school and University education online, to shutting down non-essential businesses while a range of emergency measures were adopted throughout the world for those finding themselves unemployed as a result, to global travel restrictions and the closing of national borders even within the Schengen area, there is hardly any area has not been affected by the outbreak. Millions of people have been asked to stay home to and to ‘social-distance’ in order to slow down the spread of the virus. Meetings of a large number of people, including demonstrations, have been prohibited. Parliaments around the world have closed down for visitors as well as reduced their agendas to all but the most essential meetings and discussions. The European Parliament, for example, cancelled its monthly trip to Strasbourg and cut short its plenary sessions.
But beyond that, how have parliaments ensured that they will continue to operate in this time in which parliamentary oversight over emergency measures heavily curtailing citizens’ freedoms in the name of public health might be more essential than ever? What preventive measures have been taken to guarantee that parliament will be able to take legally binding decisions even in the case that a large part of their members cannot be physically present to meet the quorum?
The question is a two-fold one. First, what preventive measures have parliaments enacted to ensure that they will be able to keep sufficient distance between one another to prevent a spread of the infection amongst their midst – or in short: how do parliaments debate and vote in times of social distancing, where their work in normal times is based on meeting and discussing in large plenary sessions? And second, what measures have parliaments introduced to ensure that they will be able to take decisions even if a high number of parliamentarians are either sick or under quarantine?
One solution, which provides an answer to both questions as it allows for both social distancing and voting by parliamentarian under quarantine, is remote voting. Thus, on 26 March the European Parliament has, for the first time in its history, allowed for a remote voting procedure: MEPs, voting from across the European Union, could cast their vote by sending a form, completed with a simple yes or no vote as well as their signature, via email to the Parliament. However, not all parliaments have the technical means, or the legal basis, to move their operations entirely online.
In Germany, for example, the parliament decided to stick with physical voting as far as possible. Where possible, parliamentarians were asked to follow the speeches and debates remotely from their parliamentary offices and to only attend in person to cast their vote. This means that only parliamentarians giving a speech or those specializing in the topic of the debate were present in the plenary, significantly reducing the number of MPs in the room.
Also the voting procedure did not as usual take place in the plenary but was instead moved into the lobby of the building in order to ensure sufficient distance between parliamentarians during the voting process. Moreover, and as a precaution to ensure its functionality even in the case that a high number of parliamentarians would be under quarantine, the Bundestag also amended its Rules of Procedure to lower the threshold for the quorum, which normally requires a majority of members to present in order for the Bundestag to be able to take decisions. Under the new rules, which will automatically cease to have effect on 30 September 2020, the quorum will be lowered to a quarter.
A similar approach was also discussed at State level for the regional parliament in Berlin, the Abgeordetenhaus. However, unlike for its federal counterpart, the quorum, which also at Berlin State level constitutes majority of its members, is not enshrined in its Rules of Procedures but rather in its State Constitution. This in turn means that a change thereof would require a constitutional amendment, adopted by two-thirds of the State parliament. This has not yet happened. Another idea, argued for by some parties in the Abgeordnetenhaus, is the introduction of an emergency parliament, which could take decisions with only 27 members.
But also here there has been no consensus between all political parties in parliament. Instead, the plenary room was adapted to ensure sufficient distance between seats and informal agreements were made for a so-called ‘pairing arrangement’. Under a pairing arrangement all political groups in parliament agree to respect the existing majority ratio, even where not all parliamentarians are present for voting – this also includes the existence of a government majority even where they happen to be outnumbered by the opposition. This arrangement is to ensure that not all parliamentarians have to be in the room at the same time at all times.
In France, yet another approach was taken by extending the vote-by-proxy procedure in the National Assembly. Whereas before a single parliamentarian could grant a proxy vote to another MP, this is now possible for a whole political group – meaning that a single group member can now vote by proxy for their entire political group. Similar to Germany, also in France the number of parliamentarians sitting in plenary sessions was reduced in order to mitigate the risk of spreading the virus, in this case to three MPs per political group in a sitting.
Also in UK House of Commons the number of parliamentarians physically attending parliamentary sessions have been reduced, with those present sitting further apart than in normal times and formal votes being staggered in a way that not all MPs have to be present and walk through the lobbies at the same time.
In conclusion, there are different approaches which parliaments can take, and have taken, to ensure that they will be able to continue to operate even in times of a global pandemic. And while the measures may differ in practical terms, they all serve the same goal: preventing an incapacitation by parliament through a Corona outbreak in their midst, during a time in which fundamental rights of citizens are heavily curtailed on grounds of public health and in which parliamentary control is more important than ever.
The President of the European Parliament, David Sassoli, has said with regard to the European Parliament that “Parliament must remain open, because a virus cannot bring down democracy.” This statement is not only applicable to Parliament at supranational level but for all parliaments – at European, at national, and at subnational levels.
Hoai-Thu Nguyen is als Universitair docent publiekrecht verbonden aan de Universiteit Maastricht.
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