Parliaments in Times of Crisis: COVID-19, Populism and Executive Dominance

Nicole Bolleyer, Geschwister-Scholl-Institute, Ludwig Maximilian University of Munich, Germany Orsolya Salát, Institute for International and Political Studies, ELTE University, Budapest, Hungary

Online Appendix

Note on Court Rulings in Response to COVID-Measures

While by now a range of cases is pending and first rulings have been issued, even strong, unquestionably independent courts with high standing appear cautious to challenge executives as could be expected on the basis of literature. For instance, the German Federal Constitutional Court rejected several requests for preliminary injunctions as ungrounded,1 and even when it recognized the severity of rights limitations, it emphasized that in light of the importance of the state’s duty to protect life and limb, stakes are too high for a decision to be taken in accelerated procedure.2 On the other hand, of course, a decision which comes in a year or two’s time, will likely not be able to reverse processes which led to significant harm, like bankruptcy and so on. When courts do intervene, they object to blanket bans (like the German court on the blanket ban on assemblies)3 or limit the range of possible interpretations of executive action (like the French Constitutional Council, largely finding the emergency laws constitutional, just putting relatively small reservations to their interpretation).4 Thus, to date, judicial activity seems to have remained in the outer and formal spheres of constitutionalism.5

Primary Documents and Online Sources

BBC. MPs agree to extend COVID powers until September, 25.03.2021. https://www.bbc.com/news/uk-politics-56521358, accessed 05.04.2021.

Bundeskanzlei Schweiz. Bericht des Bundesrates über die Ausübung seiner Notrechtskompetenzen und die Umsetzung überwiesener Kommissionsmotionen seit Beginn der Coronakrise, 28.05.2020. https://www.bk.admin.ch/bk/de/home/dokumentation/gesetzgebung/berichtnotverordnu ngen.html, accessed 10.08.2020.

1 BVerfG, 1 BvR 762/20, 1 BvR 2038/20 , 1 BvR 2039/20, 1 BvQ 93/20. 2 BVerfG, 1 BvR 755/20, especially paras. 10-11. 3 BVerfG, 1 BvR 828/20. 4 Décision du Conseil constitutionnel n° 2020-800 DC du 11 mai 2020, décision du Conseil constitutionnel n° 2020-808 DC du 13 novembre 2020. 5 See also, on a very recent decision of the BVerfG on complaints regarding measures of the April 2021 reform, https://www.zeit.de/politik/deutschland/2021-05/bundesverfassungsgericht-lehnt-eilantraege-gegen- ausgangssperre-ab?utm_referrer=https%3A%2F%2Fwww.google.com%2F, acccessed 01.05. 2021.

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Cowie, Graeme. Coronavirus Bill: Amended time limits and post-legislative review, Library of the House of Commons, 25.03.2020. https://commonslibrary.parliament.uk/coronavirus- bill-amended-time-limits-and-post-legislative-review/, accessed 20.07.2020.

Department for Health and Social Care (UK). Suppementary Delegated Powers Memorandum on the Coronavirus Bill, 23.03.2020. https://publications.parliament.uk/pa/bills/lbill/58-01/110/5801110-DPMsupp.pdf, accessed 20.07.2020.

Filippov, Gabór. Hungary: Executive Summay, n.d.. https://freedomhouse.org/country/hungary/nations-transit/2020, accessed 10.02.2021.

Gaillet, Aurore and Maximilian Gerhold. Etat d’urgence sanitaire: Wie Frankreich den Coronavirus bekämpft, Verfassungsblog, 27.03.2020. https://verfassungsblog.de/etat- durgence-sanitaire/, accessed 10.08.2020.

Haguenau-Moizard, Catherine. Governing Through Fear in France: The Pandemic, Parliament and Citizens’ Rights in France, Verfassungsblog, 01.04.2020. https://verfassungsblog.de/governing-through-fear-in-france/, accessed 10.08.2020.

Jacobsen, Lenz. Infektionsschutzgesetz im : Von Angst getrieben, Die Zeit Online, 18.11.2020. https://www.zeit.de/politik/deutschland/2020- 11/infektionsschutzgesetz-bundestag-reform-coronavirus-pandemie-befugnisse- grundrechte, accessed 05.04.2021.

Keul, Katja, , , Christian Kühn, , , Renate Künast, , Katja Dörner, , Britta Haßelmann, , , Tabea Rößner, Charlotte Schneidewind-Hartnagel, und der Fraktion BÜNDNIS 90/DIE GRÜNEN. Antrag ‘Recht und Justiz krisenfest gestalten’, Drucksache 19/18712, 21.04.2020. https://dip21.bundestag.de/dip21/btd/19/187/1918712.pdf, accessed 10.08.2020.

Klafki, Anika. Coronavirus und Reformbedarf des „Pandemierechts“, 05.03.2020. https://verfassungsblog.de/coronavirus-und-reformbedarf-des-pandemierechts/, accessed 05.08.2020.

Letteron, Rosalind. L’état d’urgence sanitaire, un objet juridique non identifié, Libertés Cheries Blog , 21.03.2020. http://libertescheries.blogspot.com/2020/03/letat-durgence- sanitaire-objet.html, accessed 10.08.2020.

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Mudde, Cas. Will the Coronavirus kill populism? Don’t count on it, The Guardian, 27.03.2020. https://www.theguardian.com/commentisfree/2020/mar/27/coronavirus- populism-trump-politics-response, accessed 14.07.2020.

Müller, Jan-Werner. How Populitsts will leverage the pandemic, World Politics Review, 07.04.2020. https://www.worldpoliticsreview.com/articles/28663/how-populists-will- leverage-the-coronavirus-pandemic, accessed 08.08.2020.

Richter, Dagmar. Das Corona-Ermächtigungsgesetz – ein schlechtes Beispiel für Europa? Machtfülle des Bundesgesundheitsministers und Entmachtung des Gesetzgebers durch das neue deutsche Infektionsschutzgesetz, 24.04.2020, http://jean-monnet- saar.eu/?page_id=2498, accessed 25.07.2020.

Schäfer, Fabian. Das Covid-19 Gesetz auf einen Blick, NZZ, 07.05.2021. https://www.nzz.ch/schweiz/das-covid-19-gesetz-auf-einen-blick-ld.1623528, accessed 10.05.2021.

Schmitz, Holger and Carl-Wendelin Neubert. Parlament beschliesst Änderung des Infektionsschutzgesetzes, 19.11.2020. https://www.noerr.com/de/newsroom/news/parlament-beschliesst-anderungen-des- infektionsschutzgesetzes, accessed 10.02.2021.

Sierakowski, Slawomir. Why populists love the pandemic, Balkan Insight, 02.04.2020. https://balkaninsight.com/2020/04/02/why-populists-love-the-pandemic/, accessed 08.08.2020.

Wissenschaftliche Dienste Deutscher Bundestag. Staatsorganisation und § 5 Infektionsschutzgesetz. Ausarbeitung WD 3 - 3000 - 080/20, 2020. https://www.bundestag.de/resource/blob/690262/cb718005e6d37ecce82c99191efbec49/ WD-3-080-20-pdf-data.pdf, accessed 05.08.2020.

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Table A1: Parliamentary Policy-making Power during the COVID-19 Crisis

Hungary UK France Germany Italy Switzerland Main Legal Foundations for (National) Rights-Restrictive 1.Fundamental Law of Hungary 1. Public Health 1. Public Health Federal Act to Prevent and 1. Italian 1. Swiss constitution 6 9 Measures (pre-existing and newly created) 2.Catastrophe Act (2011, and (Control of Disease) Code Fight Human Infectious constitution (law 2. Swiss Epidemic Act 2012 8 as modified by the Transition Act 1984 2. Coronavirus Act Diseases (4. revisions up decrees) 3. Government and Act 2020) 2. Coronavirus Act (2020), amending to spring 2021) 2. Civil Protection Administration Organization Act 3. Coronavirus Act (2020) 2020 the Public Health Code 4. COVID-19 Act (since Sept. 4. Transition Act 20207 Code 2020)

Legal Environment as Chosen/Created during Crisis (Evolution of Parliamentary Policy-making Power within cases) Choice in favour of (available) legal No (for the initial 15 days)11 Yes Yes n/a12 Successively No13 n/a foundation for executive action (Health Act 1997) (Civil Contingencies (1955 Act on the that reduced parliamentary-policy Act 2004) State of Emergency) making power (if yes, available act(s) not used)

Reform of foundation for executive Yes Yes Yes Yes No No14 Reduction of action (overall) reducing (Coronavirus Act 2020, (Coronavirus Act 2020) (Coronavirus Act Federal Act to Prevent and Parliamentary parliamentary constraints (if yes, Transition Act 2020) 2020) Fight Human Infectious Policy-Making new or amended act) Diseases) Power through Legislative Choice Reform of foundation for executive Yes Yes Yes Yes No No15

6 Fighting the COVID-19 pandemics executives have used different types of legal measures simultaneously. The focus in this analysis is the main legal foundation used by the national government to put in place the main rights-restrictive measures that curtailed and still curtail fundamental democratic rights whose implementation through executive decrees is particularly problematic and where normative pressure to assure parliamentary involvement is particularly prounounced. 7 The Health Act was relied on for four days between the expiry of the initial state of danger on 26 March and the entry into force of the Coronavirus Defense Act on 30 March. Then the June 2020 modification to the Health Act by the Transition Act granted the possibility for the government to declare and renew every 6 months the so- called “medical crisis situation”. 8 This act provided basis for the lockdown measures in England under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the other regions adopted similar but separate regulations). The Coronavirus Act 2020 expanded the already extensive executive powers further. 9 Art. 77(2) of the Italian constitution allows the government in cases of ‘urgency and necessity’ to issue so-called law-decrees – “provisional measures with the force of law”. Law decrees as an instrument are unrelated to the state of emergency declared based on the Civil Protection Code authorizing the issuing of civil protection orders. 11 A constitutional state of exception (state of danger) was declared, which allows for broader executive action than regular laws, although the Fundamental Law does not mention pandemics among the grounds for declaring state of danger (Art 53). While this process requires – unlike the one based on the Health Act– parliamentary involvement, it was only relevant for 15 days. 12 n/a indicates that there were no multiple legal provisions available that could have authorized (national) executive action. 13 Initial measures were based on the Civil Protection Code (based on which a state of emergency was declared), which successively was replaced by ‘urgent’ law-decrees based on Art. 77(2) of the constitution as main foundation for rights-restrictive measures. 14 The COVID-19 Law of September 2020 altered the legal regime as displayed in this table. However, overall, it did not decrease parliamentary policy-making power considering control both over ‘state of exception’ and executive decrees authorizing rights-restrictions. 15 The Covid-19 law allowed for the continuation of earlier measures that otherwise would have expired after six months. 4 or Legal Reform10 action expanding regulatory scope for executive action outside ‘normal’ legislative process New legal foundation applicable Yes No No Yes17 No No beyond current COVID-19 pandemic16

Legal Environment in Place during Crisis (Level of Parliamentary Policy-making Power across cases) Parlament controls start of ‘state of No Yes19 No20 Yes No Swiss Epidemic Act: No Parliamentary exception’ (whether implemented COVID-19 Act: Yes21 Policy-Making through constitutional emergency Power over ‘State provisions or ‘normal’ legislation) of Exception’18 Parlament can end of ‘state of No No Yes (after one Yes No Swiss Epidemic Act: No exception’ on own initiative22 month) COVID-19 Act: No Maximum legal duration of state of No24 Yes (2 years25) Yes (1 year, 9 No but ends after 3 Yes (1 year)27 Swiss Epidemic Act: No exception (duration)23 months and 8 months automatically if COVID-19 Act: Yes (1 year and 3 days26) not re-instated by months28) parliament

10 Note this is an empirical assessment of which pre-existing procedures were used, not an evaluation of the motivation or legality of the choices made by government. 16 Note this does not include economic measures that might become permanent but focuses on the relationship between the two branches. 17 Whether current German legislation stays in place will be determined by parliament in 2022 after an expert review by the German National Academy of Sciences due end of 2021. https://dip21.bundestag.de/dip21/btd/19/265/1926545.pdf, accessed 30.04.2021. 18 State of exception is used as umbrella (not a legal) term for the period in which normal checks and balances were (or are still) relaxed during the COVID-19 crisis. This can happen through normal legislation or be based on specific constitutional provisions. 19 As the Coronavirus Act 2020 as a central foundation for rights-restricive measures was a new piece of legislation, it was parliament which put it into force and thereby started the period during which government could deviate from normal law-making. 20 Although the National Assembly declared the state of medical emergency at the first time in the same law in which it was created, after that, in the new regime, the declaration is a government competence. 21 As the COVID-19 Act as a central foundation for rights-restricive measures was a new piece of legislation, it was parliament which put it into force and thereby started the period during which government could deviate from normal law-making. Furthermore, if the ‘state of exception’ is regulated through ordinary law, parliaments can always issue new legislation to replace it. This criterion is more specific and captures whether the right to end the ‘state of exception’ is explicitly granted to parliament in the context of the respective emergency regime. 22 This is not the case if parliament may only vote on the state of exception only at pre-defined times and if a vote does not take place the default is the state of exception being maintained rather than becoming void. 23 This refers to maximum of initial declaration. If extensions are possible, this information is included in footnotes. 24 There is – de facto – no end date, as under the Health Act modified by the Transition Act, the government can extend the medical crisis situation every six months as long as it wants without parliamentary approval. As expected, the medical crisis situation introduced in June 2020 (by ordinance 283/2020 (VI.17.) Korm. rendelet) was prolonged till June 2021 (by ordinance 584/2020. (XII. 15.) Korm. rendelet). 25 The government is authorized to extend the act once for another six months. 26 Loi n° 2021-160 du 15 février 2021 prorogeant l'état d'urgence sanitaire. 27 The Civil Protection Code allows for an extension of one more year. 28 The COVID-19 Law expires 31.12.2021. 5

Executive decrees need positive No (none)30 No (2.5 years31) Yes (1 month) Uniform, nation-wide Yes (60 days33) Emergency measures (Exekutive Parliamentary legislative approval not to become restrictions: Yes32 Notverordnungen): Yes (6 Policy-making automatically void (maximum Less wide-ranging months34) Power over duration measures can be valid) restrictions: No (30 days) COVID-19 Act: No (1 year and 3 Executive Decrees29 months)

Parliament can amend individual No No No No Yes Emergency measures (Exekutive (authorizing) decrees Notverordnungen): Yes COVID-19 Act: Yes35 Provision for parliament to issue its No No No No No Emergency measures own emergency measures (Parlamentarische Notverordnungen): Yes36

29 The information provided refers to the legal foundation which was the most central to authorize rights-restrictions during the crisis. If there were multiple regimes co- existing of similar relevance information indicates the procedural solution in the majority of regimes. 30 Under the Fundamental Law, in state of danger, decrees lose their force in 15 days unless parliament authorizes their extension. Under the Coronavirus Defense Act (i.e. the legal instrument in force during the height of first wave of the crisis) this was eliminated, thus there was no possibility for parliamentary involvement over the executive decrees whatsoever. Under the Transition Act, permanently, the state of danger is reverted back to the pre-Coronavirus Defense Act stage in that after 15 days, parliament needs to approve the decrees, otherwise they lose their force. However, in the so-called “medical crisis situation”, in the form introduced permanently by the Transition Act, Parliament has no say, and government can renew its own measures every 6 months without any parliamentary involvement ad infinitum. Therefore, overall (for the height of the first wave of crisis, and for the bulk of possible measures in the new permanent regime) parliament is not involved. As expected, the medical crisis situation introduced in June 2020 (by ordinance 283/2020 (VI.17.) Korm. rendelet) was prolonged till June 2021 (by ordinance 584/2020. (XII. 15.) Korm. rendelet). The state of danger was reintroduced in November 2020 (478/2020.(XI. 3.) Korm. rendelet), and ordinances were approved by Parliament after 15 days (2020. évi CIX. törvény) for 90 days, and again in January 2021 (27/2021. (I.29.) Korm.rendelet), and ordinances were approved by Parliament after 15 days (2021. évi I. törvény) for 90 days, as if to obscure that the medical crisis situation is anyway continuously in force. A new bill is pending to extend it again, this time till Fall 2021. https://www.parlament.hu/irom41/15997/15997.pdf 31 Maximum validity prescribed by end of the Coronavirus Act. 32 These measures become invalid if infection rates fall below a predefined threshold. 33 This refers to law-decrees as main legal foundation for rights-restrictive measures. 34 Legal scholars argue that in the case of right-restrictive measures the immediate action by both federal council and parliament are required to assure a legislative foundation immediately, not just ‘sometime’ within six months. This is because - in principle - executive decrees are not allowed to violate existing statutory law (made by parliament) or violate constitutional provisions (Uhlmann and Scheifele 2020: 12). 35 Parliament can issue motions to ask the government to change or adopt specific measures. Motions are considered binding for the executive (which has been reinforced in a reform of the Parlamentsgesetz in 2007, https://www.fedlex.admin.ch/eli/fga/2007/1066/de) and parliament has used them during the pandemic. See, for instance, https://www.parlament.ch/centers/documents/de/Faktenbericht-Bundesversammlung%20in%20der%20Covid-19%20Krise-d.pdf, accessed 30.04.2021. 36 The right of parliament to issue own emergency measures that override executive measures remains in place throughout the examination period, as does the provision regarding executive emergency measures based on the constitution. 6