By Evanilda Godoi*

Recent research has shown that since the beginning of the global spread of the Covid-19 pandemic, Jair Bolsonaro's presidency has been characterized by “Executive underreach”, and by a fierce campaign against international health recommendations, even those as simple as social distancing measures or wearing face masks, adopted by other institutions like the Legislative branch, Courts, and local spheres of governments like state and municipal Executives branches.

The former President, who was widely recognized for his illiberal rhetoric that repeatedly and strongly criticized democratic institutions, saw the pandemic as an opportune moment to establish a populist form of governance, adopting an anti-establishment rhetoric based on scientific scepticism, anti-intellectualism, and repeated attacks on science, universities, and the official press.

Nevertheless, the former President of Brazil faced more resistance to his authoritarian escalation than other populist leaders such as Orbán in Hungary and Kaczyński in Poland. This happened due to a particular feature of the Brazilian political system, namely the ‘coalitional’ form of presidentialism. This political system is characterized by a parliamentary fragmentation in which the elected President rarely comes to power with a majority in parliament. Therefore, government policies need to be negotiated through post-election agreements and coalitions in which minority parties play an important role in forming the government.

As the Covid-19 pandemic intensified, so did the disagreements between the Executive and Legislative branches of government. Conflicts between the powers became frequent, and sometimes the Judiciary was called upon to interfere in ordinary politics. The pandemic accentuated the disagreements between the powers regarding the role of the State and the legitimacy of its action in the economy, health protection, education, and the granting of social benefits.

The Legislature offered an effective resistance to the government’s denialist measures and played an important role in confronting Covid-19 by using an ordinary constitutional prerogative in presidential regimes: Congress can override a veto. By analysing the matters vetoed by the former President, it was possible to empirically demonstrate his manifest denialism.

According to a sample analysis comprising the legislative process between April 2020 and April 2021 (exclusive of ordinary budgetary vetoes), 70 bills were vetoed, 39 of which referred exclusively to Covid-19. More than 360 normative provisions were vetoed on subjects such as sanitary measures (like mandatory use of masks during the Covid-19 pandemic and some exceptional educational standards during the Covid-19 pandemic) and vaccination, financial aids (for instance, aid for informal workers affected by the coronavirus, emergency actions aimed at the cultural sector during the pandemic, and access to the internet in basic education), specific policies for minorities (emergency plan for indigenous people and support measures for various communities, emergency aid for single mothers, support for family farmers etc.).

The Congress succeeded in overriding 44% of the vetoes. This was a significant number considering that the Brazilian Constitution requires a qualified quorum (absolute majority) to override the presidential veto, which is significantly higher than the simple majority required to pass an ordinary act.

Digging up more data, the vetoes were classified by subject matter, which rendered it possible to identify both political and ideological trends. A significant ideological divergence was found between the Legislative and the Executive branches regarding economic and public health matters. These two topics constituted 69.23% of all vetoes. In the sample, the combined total of vetoes issued for the categories of 'Sanitary Measures' and 'Vaccines' accounted for slightly more than a quarter (25.64%) of all vetoes.

The disagreement between the two branches ran deeper with regards to the protection of people’s health and life. The normative proposals in this group ranged from simple issues such as the regulation of telemedicine use during the pandemic period and a provision discharging employees from the requirement of presenting a medical certificate to justify absence from work in the first seven days of absence, to more controversial issues such as the dispute over the mandatory use of face covering masks and the prohibition of gatherings, especially in enclosed spaces such as religious temples, parties, and any kind of closed event.

The issue of vaccination played a prominent role in these disagreements, with a particular focus on the government’s reluctance to acquire vaccines, evident by the fact that it missed multiple opportunities for early purchase. When a Brazilian research-centre (Butantan Institute) finally managed to develop a national production of the first vaccine in partnership with the Chinese company SINOVAC, the former President attempted to interfere in the regulatory agency responsible for authorizing the distribution. He launched an ideological campaign in the underworld of social medias, spreading fake-news against the vaccine. On the other hand, he advocated for a wider use of chloroquine, a drug that had been proven ineffective in treating Covid-19. It was only on the 17^th of December 2020, after rejecting several vaccine acquisitions offers, the former President authorized the opening of extraordinary credit for the purchase of vaccines.

Among the bills that were fully vetoed and later overridden by the Congress, the PL 3.477/2020 stands out. This bill sought to guarantee access to the Internet for students and teachers of basic education in the public education schools. The bill was completely vetoed by the former President, but it was firmly rejected by the Congress, with a wide majority in the Chamber of Deputies and unanimously in the Federal Senate, becoming the Federal Law 14.172, on the 10^th of June 2021. After being defeated in the Congress, the Federal Government filed a lawsuit, an action of abstract control of constitutionality (Ação Direta de Inconstitucionalidade- ADI n. 6926), seeking to block the public resources to pay for the Internet for students and teachers in the public schools. This was just one of many examples highlighting the former President’s unwillingness to address the consequences of the pandemic on public education in Brazil, particularly in basic education.

The research also uncovered a strong reluctance of the Executive branch to implement social assistance programs for the population, both in terms of the amount of benefits provided and the range of individuals covered by these benefits. The most controversial one was about the so-called ‘Emergency Aid’, a temporary benefit granted to low-income families or unemployed people. The Executive sought to implement an emergency aid of R$200.00, while the Legislative branch, after a huge dispute, raised the aid to R$600.00 (approximately £100).

The Executive was also reluctant to implement action plans specifically designed to protect indigenous and quilombola populations, facing resistance from the Legislature. The bill 1.142/2020, which attempted to provide an emergency plan for tackling Covid-19 in indigenous territories and support measures to protect various communities, had 22 normative proposals vetoed. Sixteen of then were overridden by the Congress. The Executive vetoed normative proposals trying to guarantee: universal access to potable water; free distribution of hygiene products; cleaning and surface disinfection materials for officially recognized or unrecognized indigenous villages or communities; emergency provision of hospital beds and intensive care units (ICUs); provisions of ventilators and blood oxygenation machines; and provision of internet points in villages or communities which enabled access to information and prevented indigenous people from traveling to urban centres.

Even though the Executive’s will occasionally prevailed, the research findings demonstrated that Legislative resistance played a crucial role in countering austerity policies that overlooked the pandemic’s impact on the general population’s wellbeing. The Legislative branch revealed relatively efficient efforts in ensuring health and sanitary protection measures, particularly in contrast to negationist and highly ideological measures.

The sample analysis suggested that when the former President had a relatively weak parliamentary base and was yet to form an alliance with the Centrão, the Legislative branch exercised some degree of control over the Federal Government’s lack of rationality in implementing measures. The research also demonstrated that the Legislative branch’s capacity for action expanded while the Executive branch weakened in addressing Covid-19. This can be attributed to the radicalism of the former President and the urgency of actions required for epidemiological control amid the pandemic’s emergency context. This radicalism culminated in a parliamentary commission of inquiry (CPI) to investigate Bolsonaro’s liability.

However, control via the Legislature has some limits, and the Executive’s negligence in formulating responses to Covid-19 could not be completely remedied by the Congress’s responses. Studies carried out by the Instituto de Estudos Socioeconômicos (INESC) demonstrated that the non-execution of all the resources released for the fight against the pandemic contributed to Brazil closing the year 2020 with more than 200,000 deaths and 13.4 million unemployed people. The number of deaths from Covid-19 in Brazil increased rapidly in 2021, reaching a peak of 4,000 deaths per day. In the beginning of 2023, the number of deaths from Covid-19 was more than 690,000, according to WHO. The dominant position among the scientific community in Brazil is that the government could have avoided 400,000 deaths had the measures against the pandemic been adopted at the right time and had all the resources available been effectively employed.

To conclude, the Legislative branch has played a fundamental role in tackling the Covid-19 pandemic. But the robust response of the Legislature came at a cost. The increased influence of the Legislature over the Executive branch has the potential to pose significant consequences for future administrations, and there are suggestions that it has led to a weak Executive branch. After Bolsonaro’s government, the Legislature’s control of budgetary choices in Brazil is probably higher than any other democracy. Nevertheless, a comprehensive exploration of this matter lies beyond the scope of the present discussion.

*Adjunct Professor of Law and Coordinator of the Juridical Practice Laboratory,  Federal University of Viçosa (Minas Gerais, Brazil); Research Fellow of the Transnational Law Institute, King's College London

The full Jamaica report has recently been published in the Oxford Compendium of National Legal Responses to Covid-19. The newly added sections of the report, Parts V and VI, are authored by Gabrielle Elliott-Williams and Tracy Robinson. Part V is concerned with social and employment protection mechanisms in Jamaica in response to the pandemic, and Part VI considers the impact of the pandemic on human rights and vulnerable groups in Jamaica.

Part V begins by noting that Jamaica is described by the World Bank as an upper middle-income economy, and that it experiences low growth, high public debt, and is vulnerable to external shocks. Indeed, in 2019 the poverty rate in Jamaica was 11%, but the World Bank estimates that it grew to 23% in 2020 as a result of Covid-19 [83]. The primary source of social protection during the pandemic was the COVID Allocation of Resources for Employees (“CARE”) Programme. The programme was aimed at improving the purchasing power of persons who had lost their income stream, providing relief to the poorest, and giving modest assistance to those in the informal economy [85].

The pre-existing Programme of Advancement Through Health and Education ("PATH"), Jamaica’s chief social assistance programme, is a conditional cash transfer programme which targets poor persons and families for assistance. Between April and June 2020 all PATH recipients automatically received an additional payment, and it was reported that expenditure on the programme increased 40% on 2020/21 fiscal year, compared to 2019/20. Furthermore, in November 2021 it was announced that approximately 10,000 families which were not PATH beneficiaries, but which had been adversely affected by the pandemic, would benefit from cash transfers.

Both contributory and non-contributory pension coverage is low in Jamaica. While the Government has made some efforts to address this problem in the context of the pandemic, its efforts have been undersubscribed. The Government hopes to expand its programme through 2023 [89]. In general, there has been a lack of law reform in response to the pandemic across a number of important social and employment protection areas.

Part VI sheds light on a number of interesting human rights related issues in Jamaica during the pandemic. From June 2020, all persons who were subject to quarantine measures were required to download the JamCovid app onto their mobile devices. This app generated location data and required input of symptoms such as temperature. Privacy considerations were addressed in this regard by the legal requirement that data could be disclosed only to members of the police force designated by the Commissioner of police, not below the rank of Inspector, and a Medical Officer, and that the data should be deleted upon the expiration of the quarantine period [111].

The gendered impact of the pandemic appears to have been significant in Jamaica. Though there is a lack of reliable data on the prevalence of violence against women either before or during the pandemic, the relevant Minister noted an increase in domestic violence cases [114]. In an incident reported during the pandemic, a woman fleeing domestic abuse was turned away at a police station and told to return outside of curfew hours. The report notes the incident was subsequently investigated and addressed, but that it was in keeping with persistent failures [115].

The full Jamaica report provides a clear and detailed account of legal responses to Covid-19 in Jamaica, and will be an extremely valuable source of information going forward.

The Irish Report for the Oxford Compendium of National Legal Responses to Covid-19 has recently been published in full. The newly published sections of the Report concern, respectively, the social and employment protection mechanisms introduced in response to Covid-19 (Part V, authored by Seána Glennon), and the impact of the pandemic on human rights and vulnerable groups (Part VI, authored by Silvia Gagliardi).

Part V outlines the range of new social protection measures introduced in Ireland in response to the pandemic, as well as the series of pieces of legislation enacted to protect tenants at risk of losing their tenancy due to Covid-19, and the measures introduced by the banking sector to support those affected by Covid-19. Of a labour force of approximately two million people, the Irish Department of Social Protection reported that over 1.2 million people had received support from one of three specific Covid-19 social security measures, and that the total social welfare expenditure increased 46% in 2020 compared to 2019 [235]. The two measures included the Covid-19 Illness Benefit, payable to employed and self-employed persons who were unable to attend work due to Covid-19. The rate of benefit was EUR 350 per week, an increase on the standard benefit rate of EUR 203 per week [257]. A further protection mechanism was the Temporary Covid-19 Wage Subsidy Scheme (“TWSS”), which was subsequently replaced by the Employment Wage Subsidy Scheme (“EWSS”). These schemes were designed to help employers keep employees on their payroll through the crisis period [266]. Where this was not possible, the Covid-19 Pandemic Unemployment Payment (“PUP”) was established to support employed or self-employed persons who lost their jobs as a result of the pandemic [253].

Part VI highlights the fact that the Covid-19 pandemic exacerbated long-lasting and intersectional inequalities present in Irish society, taking an especially high toll on women, members of the Traveller communities, children from disadvantaged groups, older people, people with disabilities, people in custody, and non-nationals [287]. The pandemic disproportionately affected women, partly because they are traditionally overrepresented in caring and house-keeping jobs, and in the informal sector [298]. Furthermore, the so-called “shadow pandemic” of gender-based violence affected Ireland, as it did much of the world. However, the Irish government was commended for introducing a number of “positive measures or exemplary practices” to aimed at tackling the problem [300]. Migrants and ethnic minorities have also been particularly affected by the pandemic. Discrimination and exploitation in the workplace was reported to have increased, and disadvantaged children bore the brunt of school closures in terms of education, mental health, and freedom from abuse [301]. There was a noteworthy increase in racist attitudes and attacks towards people of Asian descent given the association of the origins of Covid-19 in China [302]. The report also draws attention to the fact that legislative and administrative challenges remain in Ireland to guarantee the protection of human rights of persons with disabilities, and that this was evident in the pandemic [305].

The full Irish report is a fascinating, clear, and insightful account of legal responses to Covid-19 in Ireland that will serve as a useful resource for lawyers, historians, policy makers, and many others.

This blogpost is based on the new complete report for the European Union authored by Tamara Hervey and Sabrina Roettger-Wirtz in the Oxford Compendium of National Legal Responses to Covid-19, as well as Vincent Delhomme, Tamara Hervey, ‘The European Union’s response to the Covid-19 crisis and (the legitimacy of) the Union’s legal order’, Yearbook of European Law, 2023.

The European Union (EU) is not a state. There is no ‘EU healthcare system’. The organisation and financing of healthcare systems falls within the competence of EU Member States. The EU has limited competence in public health. Some aspects of public health regulation are harmonised at EU level, but, in general, the hallmark of EU action in the public health domain is coordination and persuasion. Many aspects of the legal response to the Covid-19 pandemic within the EU therefore took place at national, or even sub-national, level. The EU did not order stay-at-home measures, deal with hospital planning, devise vaccine strategies, or set up furlough schemes. Member States were in charge.

Despite this allocation of powers, the EU has nonetheless been very active in response to Covid-19, especially using soft law and other ‘steering’ mechanisms. Further, the EU has engaged the full panoply of exceptions and derogations within its legal provisions, across a wide range of areas including free movement of people, state aids to industry, competition law and consumer protection law. For those who had previously assumed that EU law embodies a narrow notion of the disciplines of the EU’s internal market, which favours ‘economic’ interests over ‘health’ interests, the pandemic shows this view is mistaken. The EU’s Covid-19 response is instead based on creative interpretations of EU law, designed to meet the needs of human health.

The most controversial aspect of the EU’s Covid-19 response is the way that the EU has redefined its fiscal and economic governance competences to create and implement a plan for economic recovery which, though formally limited in time, far exceeds in scale and scope any previous EU redistributive activity. ‘NextGenerationEU’ involves the Commission borrowing funds on capital markets on behalf of the EU. NextGenerationEU is not only an emergency instrument. It supports post-pandemic ‘recovery’ and also longer-term ‘resilience’ in the Member States. The funds allocated are being used for objectives that ostensibly have little to do with Covid-19, such as the green and digital transitions sought for the EU’s economy.

The European integration project has often made legal and institutional changes in response to crises. This is not really the case for the Covid-19 pandemic. Instead, the EU’s legal response takes place within its existing competences, rather than extra-legally or using international law, giving enhanced legitimacy to EU Covid-19 law. On the other hand, however, the move to executive and technocratic governance associated with the EU’s pandemic response is a step backwards in terms of legitimacy, regarding both policy substance and law enforcement. The lack of democratic or judicial oversight over EU Covid-19 (soft) law negatively affects its legitimacy.

The findings at the basis of this blogpost have been published in Edoardo Celeste, Sorcha Montgomery, Arthit Suriyawongkul (2022)  ‘Digital technology and privacy attitudes in times of COVID-19: formal legality versus legal reality in Ireland’.  Northern Ireland Legal Quarterly, 73 (2):283-309.

While we became familiar with images of mask-wearing in old photos and comparisons with the 1918 influenza epidemic during the COVID-19 pandemic, the use of digital technology was a new and marked difference to pandemics that had come before. This technology, used for measures including contact tracing and the enforcement of lockdowns, brought great efficiencies and greatly increased the effectiveness of virus control measures. However, use of these technologies brings risks alongside efficiency. As many responses relied on the processing of data of identifiable individuals in order to achieve their purposes, from contact-tracing to quarantine enforcement, this risk was particularly acute for the fundamental rights to privacy and data protection.

Alongside the increased use of digital technology, the idea of ‘necessary sacrifices’ was a core theme of the response to the Covid-19 pandemic. Indeed, across the globe many countries were faced with restrictions to rights and liberties that were imposed as unavoidable choices to contrast the pandemic. This was amplified in some Asian countries, whereby responses to the pandemic brought with them severe restrictions of many rights, including in particular the rights to privacy and data protection. Indeed, the use of data, including location data, collected by Covid-tracker applications posed a concrete risk of mass surveillance, as exemplified by the indiscriminate use of data through the Health Code apps by the Chinese government. Not to mention the consequent risk of mission creep of these applications, initially introduced with the pretext of fighting the pandemic and often kept with the only evident purpose of surveilling citizens.

Language around sacrificing these rights permeated throughout the globe, even spreading through European media. The Data Protection Commissioner of the Council of Europe and Chair of the Convention 108 stated that ‘data protection can in no manner be an obstacle to saving lives, and that the applicable principles will always allow for a balancing of the interests at stake.’ While this balancing is possible, a complete derogation of privacy and data protection in pursuit of any interest is not possible in the European Union owing to the inalienable nature of, and strong protection afforded to, fundamental rights by the Court of Justice of the European Union. The rights to privacy (Article 7) and data protection (Article 8) are safeguarded by the Charter of Fundamental Rights of the European Union. This includes the requirement in Article 52(1) to ‘respect the essence’ of all fundamental rights. The  development  of  the  concept  of the ‘essence’  of  fundamental rights under Article 52(1) was first illustrated in the seminal case Digital Rights Ireland. It was further developed in Schrems I, wherein the CJEU determined that authorities having ‘access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life’.

In spite of this strong legal protection afforded to privacy and data protection in the EU, a survey of Irish residents conducted by the SFI funded project PRIVATT empirically demonstrated that a significant portion did not trust the technological tools introduced by the Government. This was despite their formal legality, i.e. their compliance with the established Irish and European privacy and data protection law. From a socio-legal perspective, in this article we explain how this divergence exposes a discrepancy between the formal legality and legal reality of the digital solutions adopted by the Government. This discrepancy can be interpreted as evidence of a lack of transparency and involvement of the population in decision-making, as well as legal literacy around the safeguards offered by fundamental rights, particularly by the rights to privacy and data protection.

This distrust of the Government’s data-handling practices evident in the survey data was accompanied by the finding that Irish residents adjusted their privacy attitudes during the pandemic, becoming more willing to share their data to counteract the spread of the virus. In light of the value the population sees in this form of solution to the spread of COVID-19, increasing awareness of the strong protection afforded to privacy and data protection in the EU could reassure potential users and ultimately increase the effectiveness of these digital solutions. This finding highlights the possible potential for these technologies to improve their efficiencies and social acceptance without jeopardising the rights to privacy and data protection.

To capitalise on this willingness to share data, we recommend ensuring that digital solutions are accepted, understood and endorsed at a societal level. In more concrete terms, we make an appeal to increase awareness of the inalienability of fundamental rights and of the content of privacy and data protection rights in particular. This would enable the general population to assess and be critical of any digital technology instruments possessing a potential to restrict their rights unnecessarily. Enhancing transparency and citizen-participation measures could also increase the privacy rights literacy of the population, enabling more participative decision-making processes, increased acceptance and use of digital solutions, and ultimately a higher level of compliance both in times of crisis and ‘normality’.

Sorcha Montgomery is an Administrative Officer at the Department of Children, Equality, Disability, Integration and Youth and former researcher at the DCU Law and Tech Research Cluster.

Edoardo Celeste is an Assistant Professor of Law, Technology and Innovation and Chair of the Erasmus Mundus Master in Law, Data and AI at the School of Law and Government of Dublin City University.

The full country report for Indonesia is the latest addition to the Lex-Atlas: Covid-19 project, and the Oxford Compendium of National Legal Responses to Covid-19, authored by Linda Yanti Sulistiawati and Ibrahim Hanif. It provides significant insight into the Indonesian Government’s response to Covid-19. This blog post sets out a number of notable features of the report and of the Indonesian response to Covid-19.

As in many states, the executive branch of government took a leading role in the Indonesian response to Covid-19. However, the role of Parliament in Indonesia and its oversight over executive conduct was unusually limited. The report demonstrates that the response to the pandemic was primarily affected by the Covid-19 Management and National Economy Revitalization Task Force (“Covid-19 Task Force”) (Komite Penanganan Covid dan Pemulihan Ekonomi Nasional) which itself was set up through government regulation. Many of the regulations were made under the Contagious Diseases Law, the Health Quarantine Law and the Regional Government Law, and regulations pursuant to these Acts were not subject to legislative approval, nor other forms of parliamentary checks and balances. The authors of the report suggest the general lack of parliamentary scrutiny may have been augmented by the fact that the Government entered the pandemic with a supermajority coalition in Parliament, and so there were very close links between the executive and legislature.

The Indonesia report also presents an interesting picture regarding access to justice during the pandemic. An e-court system was set up in Indonesia prior to the pandemic which allowed for the transferral of some court proceedings to an online forum. However, in 2018, (the year it was set up) it only handled 445 out of 5,573,114 general court cases. Demand for online court services inevitably increased in 2020 at the start of the pandemic. While the report demonstrates that there was some increase in caseload of the e-courts in 2020, it also shows that the total number of cases handled in 2020 was close to half that in 2019. The authors note that the “efficacy and ability [of the e-court system] to handle the vastly increased online caseload due to the pandemic is lacking” (para 45).

It is clear from Part V of the report that, under its powers in terms of the Covid-19 Financial Policy Act, the Indonesian Government shouldered a great financial burden due to the pandemic. Tax relief policies, economic support for employers and employees, financial support for the national health insurance service, and proliferation of different programmes for social assistance all constitute examples of the shifts in spending priorities brought about by the pandemic. The effect of these shifts, particularly in a middle-income country such as Indonesia, may well have long term consequences. Such shifts may open the door to a greater wealth and prosperity disparity between densely populated, middle-income countries like Indonesia and those in the developed world.

By David Mednicoff (external contributor)

In the context of what Larry Diamond has called a global 'democratic recession,' can the rule of law push back on powers that leaders have assumed in the wake of the Covid-19 pandemic? We know that over 110 countries have enacted emergency or other measures during the recent health crisis that restricted civic freedoms. And those of us who appreciate how emergency powers have been used to institutionalize discrimination or curtail basic rights would like to see these powers scaled back. How might the rule of law as a collection of norms and institutional arrangements help this happen?

My skeptical, but not entirely bleak, approach in this brief discussion is to look at the rule of law as a term for a set of underlying norms that, like most political ideals, are subject to robust contestation across time and space. This approach appreciates, but also stands in somewhat harmonious counterpoint, to thoughtful and clear arguments that specifying the rule of law as a set of standards can assess and hold states accountable for their over-reaches of power, such as a 2021 brief by Julinda Beqiraj, Rowan Stennett, and Nyasha Weinberg for the Bingham Center.

The Bingham Center Working Paper suggests that well-defined, 'thick' understandings of the rule of law provide important metrics, against which the comparative legitimacy of government technologies to control the pandemic can be evaluated and critiqued.  I share that hope, and particularly appreciate the Working Paper’s detailed articulation of how clarity around definitions and features of the rule at the law can be helpful in gauging the particulars of what governments have done under Covid-19.

At the same time, legalist strategies of delineating lines that might press officials to conform to detailed and robust metrics of the rule of law run up against two major axes of political tension that follow from the contestability of legal values, and some of my own prior research. First, the more specific and elaborate our delineation of the rule of law, the less likely it is to correspond to the views of diverse citizens within and across a wide range of societies. Second, and related to this, leaders interested in maximizing their own power will use the inevitability of ambiguous citizens' conceptions of the rule of law to support their own frequent efforts to define their actions as consistent with the rule of law, even when they violate what seem to knowledgeable observers to be clear political limits or citizen rights.

In short, the rule of law’s inherent subjectivity and contestability don’t disappear, even amid thoughtful jurists’ efforts to clarify or sharpen its specificity or applicability to contemporary Covid-19 politics. Moreover, leaders are increasingly bold about resisting naming and shaming pressures to conform to legal standards, through framing their own versions of these. Therefore, it is important to consider supplemental ways of understanding and pushing back against leaders’ increasing tendencies to centralize and consolidate their power.

Covid-19 raises this problem clearly, because it has allowed governments to invoke emergency powers that, by their nature, blur precise boundaries of what leaders can and cannot do legally in more normal circumstances. Because emergency powers extend political control, leaders are loathe to end emergencies, as the Covid-19 crisis has illustrated. Indeed, the tendency of emergency powers, once invoked, to remain in place during Covid-19, and even before, is part of a trend in which many rulers no longer feel the need to pretend that they care about democratic norms anymore. Perhaps ironically, in the case of the United States, emergency powers have even been assumed to combat the restriction of human rights in other countries, which, of course, often happens as a result of states of emergency.

Confronted with the three challenges of Covid-19, the broader trend of declining global democratic accountability, and perceived benefits from autocratic rule of efficiency in times of crisis, rule of law legal tools have fleeting success in pushing back over-reaches of political success. After years of litigation, the European Court of Justice ruled in early 2022 that Hungary and Poland could have some European Union funding cut off because of those Member States’ derogation from EU standards of legal protection and political accountability. Yet, one leading expert argues that the ruling is 'too little, too late,' and will matter most if it encourages strong economic penalties against the two countries’ wealthy elites.

How else might the rule of law temper excess political power, so prevalent since the Covid-19 pandemic? Understanding the cultural context of contestation around the rule of law in particular societies not only illuminates legalism’s diversity and complexity. It can help activists and practitioners situate technical legal issues in broader sociocultural politics.

Appreciating legalism’s cultural context entails asking several questions. What frames around justice are prevalent and compelling in particular societies? How do these frames intersect with ideas about the rule of law that are promulgated by jurists and rights advocates? How do the politics of legalism and rights promotion (and perceptions within a society of external or neocolonial interference) hamper efforts to popularize understandings of the rule of law? How might answers to the above help activists inside and outside of a particular society push back against leaders’ assumptions of extraordinary powers?

By thinking about these questions on the rule of law in terms of sociopolitical contestation within particular societies, informal norms come to the foreground, such as ideas of fairness and justice, which are not controlled only by governments and legal systems. Foregrounding these norms can help legal activists, both external and internal to a society, call autocrats to task in broader policy failure terms.

With respect to the Covid-19 crisis in particular, several developments might be noted that hold at least some medium-run prospects for challenging many governments’ increasing tendency to accumulate power and use it repressively. These three developments are 1) the pandemic’s focus on the importance of scientific expertise; 2) its reminder of the challenges of providing and even defining equity; and 3) its highlighting the undeniable interdependence of today’s most pressing global problems.

Each of these three areas have been sites of contestation and debate that critique and shine a light on the inadequacies of autocratic flouting of legally-prescribed limits of power in the past few years. This is particularly evident with respect to health experts. Their impact during the pandemic includes available metrics that show government failure, and may correlate with specific ways that power consolidation might have undercut robust debate around responses or social consensus around citizen behavior that could have decreased the pandemic’s impact.

The democratic recession is at a frightening moment, in which autocrats aren’t pretending anymore to care about political rights and legal limits on their power. At such a time, emergency powers invoked to fight the Covid-19 pandemic are but one of many techniques that power-maximizing leaders deploy to enhance their control over their citizens. Rule of law tools to combat autocratic power should therefore also be numerous. Asserting how leaders under Covid-19 have departed specifically from thick criteria of the rule of law promulgated by international organizations, legal experts, and political theorists is one such tool. Others are situating rule of law discourse in normative discussions specific to individual societies, and connecting rule of law norms to broader aspects of political contestation. Seeing the rule of law through multiple analytical frames and as dynamically contested within and across polities offers some hope to counter growing autocratic practices that have only intensified in the wake of the very real emergency that Covid-19 has represented.

By Timothy Fish Hodgson and Melanie Jean Murcott (external contributors)

More than two years into the Covid-19 pandemic, we have grown accustomed to a new lexicon: from social distancing to PCR testing, from lockdowns to red lists, from mask mandates to quarantines, our everyday lives have been consumed with waves of Covid-19 and corresponding waves of government regulations. For governments, a key challenge has been policy-making in response to Covid-19 given significant uncertainty. Even a concept as ubiquitous as 'lockdown' lacks a clear legal or other definition, and is possibly better described as a set of laws and policy responses rather than a single, universal policy measure. From this perspective, it is unsurprising that, while some states’ lockdown measures have enjoyed legitimacy and public support, other states’ measures have been the subject of vehement protest and legal challenges.

In South Africa, lockdown regulations exacerbated inequality and tended to impact marginalised, disadvantaged, and vulnerable people most acutely, with black women being worst affected. Nonetheless, surveys appear to show that, even though the legitimacy of some lockdown measures has waned over time (and at different times), 'the willingness to sacrifice human rights remained high' amongst the public throughout. However, intensifying resistance to some measures led to legal challenges before increasingly sympathetic courts, particularly given what some have described as an 'abdication of legislative power'.

Covid-19 regulations, human rights, and the rule of law

Many of the measures taken by governments to respond to Covid-19 do limit human rights, and are justified in the name of protecting public health, or more correctly, ensuring compliance with obligations under the right to health. In terms of international human rights law, these exceptional or emergency measures should, nevertheless, be evidenced-based, necessary, and proportionate. Similarly, Section 36 of South Africa’s Constitution, the limitations clause, provides that human rights limitations must be reasonable, justifiable, and proportionate. While conclusive evidence to justify limitations may sometimes be unavailable, even in the circumstances of flux and uncertainty of the pandemic, the UN Committee on Economic, Social and Cultural Rights (UNCESCR) has warned that regulatory measures must be 'based on the best available scientific evidence', echoing previous statements to this effect.

South African courts have grappled with numerous legal challenges of lockdown regulations. Initially, the legitimacy of lockdown regulations was simply tested against administrative law standards, such as rationality and lawfulness. Notably, all public power in South Africa (even in the context public health and other emergencies declared as national disasters) is subject to scrutiny against the rule of law. Subsequently, courts were asked to hold the Government accountable to the Constitution in terms of both administrative law and human rights standards concurrently.

Covid-19 regulations banning the sale and purchase of tobacco products

In two matters relating to a Government ban on sale and purchase of tobacco products, different divisions of the High Court came to diametrically opposed conclusions. In both, the Government argued consistently that the ban would, for instance, free up space in Intensive Care Units (ICU) beds needed for Covid-19 patients and reduce the severity of Covid-19 outcomes, which it claimed, citing 'emerging evidence', were greater for current smokers than non-smokers. Thus, the Government claimed to prioritize saving lives over individual freedom and economic activity.

FITA involved a challenge to the ban on administrative law grounds. Emphasizing the Government’s obligation to act quickly in the face of the pandemic, the Court held that its narrow role was to determine whether the evidence presented: 'provides a sufficient rational basis for the Minister to outlaw the sale of tobacco products and cigarettes, as a means of curbing the Covid-19 virus spread and preventing a strain on the country’s health care facilities', not to 'undertake an in-depth comparison as to which of the parties’ medical research reports and opinions are better or more cogent than that of the other.'

While applicable legislation required enacted regulations to be 'necessary' in responding to the pandemic, during an 'unprecedented disaster' it would be 'illogical' for the Minister to show that the ban was 'strictly necessary', thereby 'requir[ing] her to jump through proverbial hoops when the enactment of the regulations was for a laudable purpose and was a matter of life and death'. The Court concluded that the legal requirement that regulations are 'necessary' was automatically met 'once it [had been] shown that there [was] a rational connection between the ban on tobacco sales and curbing the scourge of Covid-19'.

In contrast, in British American Tobacco, decided less than six months later, the Court was asked to apply administrative law and human rights standards. The Court struck the tobacco ban down, finding 'the scientific evidence relied upon by the [Government] […] far from conclusive'. Contrary to the approach in FITA, the Minister was found not to have overturned the onus to show that various limitations on human rights to trade and occupation, dignity, privacy, and property occasioned by the ban were reasonable, proportionate, and justifiable in terms of the limitations clause.

What can we learn from contradictory court decisions: how much evidence is enough?

These contradictory decisions were handed down despite very similar evidence being presented to the courts. The different outcomes reveal several things about challenges to emergency measures in the face of public health emergencies.

First, the way cases are argued, and the applicable standards of review can influence the outcome of cases testing the legitimacy of lockdown measures. Review on the narrow administrative law ground of rationality (invoked in FITA) generally leaves more room for judicial deference to the executive branch, which will likely already be very high in the context of emergencies.

Second, despite both decisions referring to the global nature of the pandemic to highlight the extent of its impact, neither decision drew on international human rights law standards. Both decisions seem to apply a standard different from the UNCESCR requirement that decisions be based on 'best available evidence', as opposed to requiring either the lower bare rationality standard (FITA) or higher onus of producing overwhelmingly conclusive evidence (British American Tobacco).

The evidence presented by the Government suggested that, while there is no overwhelming or conclusive evidence for the ban, the best available evidence may arguably have supported it. As a legally binding standard in international law, which South African courts must consider in terms of Section 39 of the Constitution, the best available evidence standard might be a more appropriate application of the limitations clause in the context of a public health emergency than the standards applied in either FITA or British American Tobacco.

Of course, it remains advisable for policy-makers to endeavour to ground responses to emergencies such as the Covid-19 pandemic (and judges to similarly ground their reviews of such decisions) in both human rights norms and the best available scientific evidence simultaneously, in a complementary manner.

Third, courts might be more willing to intervene in challenges of restrictions imposed during public health emergencies, the longer such emergencies continue and the greater public sentiment is against them. An increased willingness to intervene supports an evolving and dynamic approach to separation of powers, which emphasizes the human rights-oriented purposes underlying state formation in South Africa. The longer an executive-enforced limitation of rights continues, the less appropriate it may be for courts to sympathize with or defer to it, even in emergency circumstances. What a court may consider to be a proportionate response to a pandemic at one time, might no longer be proportionate, even relatively soon thereafter.

This flexible approach streamlines with South Africa’s constitutionally mandated 'culture of justification', which requires the executive to repeatedly justify emergency regulations as time passes and as evidence changes. The Government, to its credit, regularly revised regulations and, for example, lifted the tobacco ban before it was invalidated.

By Joelle Grogan (external contributor)

The Covid-19 pandemic caused a severe strain on health systems globally, while simultaneously presenting a social, economic, legal, political, and regulatory challenge. Decisions about how to respond to the pandemic, and the laws and measures most appropriate to limit risk and infection were mainly, if not exclusively, decided by national executive authorities, often to the detriment and exclusion of the legislature. Central to this complex, polycentric, and multifaceted emergency were two key questions: 1) who should be the dominant decision-maker; and 2) how should decisions be made. In this blog, some initial observations on the decision-makers, and processes of decision-making, are outlined.

In a democracy, it could be stated that the allocation of scarce state resources – particularly health services and fiscal support – ought to be decided by the elected whose ultimate accountability for those decisions is to the electorate. However, where an emergency creates an unexpected situation demanding complex calculations, paired with the need for urgent decision-making, those elected prior to the advent of the Covid-19 pandemic were not elected with governance of such an emergency in mind. Just as existing legal frameworks may not have accounted for the unexpected exigencies of a global pandemic, governments and legislatures were largely unprepared.

While globally, states have diverged in their responses to the pandemic, both in levels and forms of restriction imposed on populations, and in abstract ideological terms on the level of threat that the virus posed (as for example in Bolsonaro’s Brazil and the US under the Trump administration), it is nonetheless possible to observe common and distinct trends of influence over decision-making practices worldwide.

The Technocrats

In the absence of a clear understanding of the most effective course of action, many governments sought to rely on health expertise in decision-making and design of pandemic measures. Succinctly: ‘[t]echnocratic governments are crisis governments.’ The creation of expert advisory groups, with different degrees of influence over the creation of pandemic measures, was a common feature, for example in Taiwan and Germany, as well as in South Africa, with the formation of Ministerial Advisory Committees (MACs) on Covid-19, social and behavioural change, and vaccines. While there was no obligation to follow the MACs opinion, the Government indicated that it followed the advice 95% of the time, and – in response to criticism – made the advice public to facilitate transparency. However, further criticism was levelled where the Government restricted disapproval of its pandemic management, even from within the MACs.

Reliance on expertise does not immunise decision-making from democratic concerns, particularly where meetings between experts and decision-makers are held on camera behind closed doors, the rationale for measures is opaque, unpublished, or produced by only a limited number of expert opinions.

Technocratic governance can also raise democratic concerns, where decisions impact not only the allocation of state resources, but also fundamental rights and freedoms - for example, when decisions appear to be made not by elected officials, but by unelected experts, on when to restrict movement, close borders, or place the state under national or localised lockdowns. In the Netherlands, the Government response was primarily led by the advice of epidemiological experts, who directed the introduction of measures restricting constitutional freedoms, including the restriction of gatherings for protest or religious practice.

Such experts can appear democratically unaccountable, yet are significantly influencing, if not ultimately determining, decisions which ought to be. This becomes all the more concerning where the rationale for measures is unpublished or otherwise unavailable for scrutiny. While the accountability of governments is ultimately to the electorate, the responsibility (and accountability) of experts is to their field and their profession: the reasoning of both should be open to informed scrutiny.

A further criticism of ‘technocratic’ pandemic governance was the relative poverty of influence of expertise beyond virologists and epidemiologists. The pandemic and measures adopted in response to it negatively impacted more than public health. Scientific analysis and a focus on outcomes solely related to the virus, can view populations as ‘monolithic’ and may not give account of the impact of decisions on other human rights including, for example, liberty, access to justice, education, and livelihood. As widely identified, the initial advice of ‘stay home and wash your hands’ was impracticable among populations without ready access to water, and who relied on daily work outside the home for access to food. In these situations, gauging the individual threat of Covid-19, the choice to between staying home must instead be weighed against losing access to the most basic needs of food, housing, and sanitation.. Tackling not only the disease, but the ‘shadow pandemics’ of, eg, domestic violence and rising poverty which spread as a consequence of measures taken in response to it, demands more than health expertise.

A lesson for future pandemic emergency response is that diverse types of expertise should be harnessed to advise political decision-makers, though it must be acknowledged that such consultation may more likely be able to inform medium- to longer-term response and recovery, rather than the immediate response to an emerging crisis.

Militarised Mentality and the trend toward autocracy

By contrast to decisions driven primarily by public health interests, in a number of states globally, the pandemic crisis was treated as a security crisis. This securitisation of the health crisis has often correlated with the militarisation of pandemic response, for example, where military personnel have replaced medical professionals in decision-making processes. In Hungary, instead of relying primarily on democratic institutions, the military became the source of both authority when placed in senior positions in hospitals as well as telecommunications, transport, and healthcare companies, but also enforcement where charged with implementing pandemic measures - including curfew.

The justification often offered for the militarisation of pandemic response was increased efficiency and capacity: they can become a preferred response unit in emergencies and crises. In many states during the pandemic, military structures have supported civilian-led responses (eg in Taiwan, Japan, France, and Singapore). However, in some states (eg Indonesia, the Philippines, and Iran) it has primarily led it. A consequent ‘militarised mentality’ can push executive choice towards 'expansive, unaccountable emergency law' reminiscent of dictatorship. Under such a regime, ordinary civilian administration can become marginalised, underfunded, and dysfunctional. It also severely risks undermining or otherwise delegitimising a democratic response, and can serve as a weight against democratisation processes already weakened by a heavy-handed pandemic response.

Under a militarised leadership, mere obedience, rather than offering justified reasoning and clear guidelines, is the strategy for public compliance as seen, for example, in Egypt. Such militarised response also often goes hand-in-hand with autocratic or autocratising governance.

An assumption widely circulated through the early response to the pandemic was that autocratic states are able to respond to an emergency situation more effectively than democracies that respect constitutional restraints on executive power. Some states too have propagated politicised dichotomies of effective pandemic management being a choice between protecting public health or human rights – often favouring the former to the detriment of the latter. However, overconfidence in autocratic control of a situation – especially to the exclusion of expert advice – can easily produce drift and complacency, as evidenced to devastating and tragic effect in India and Malaysia.

Chaotic Governance

A further concerning trend is weak or no pandemic governance altogether: for example, chaotic decision-making indicating that executives are uncertain about policy choices or the objectives to be pursued bolsters the perception that executive reasoning was not based on any sound scientific, economic, or political rationale. Reliance on pseudo-scientific claims, or those with no scientific basis as in Brazil and Pakistan and more recently the UK was correlated with the absence of central policy control, if not outright refusal to acknowledge the threat, and is connected with 'policy inertia, poor messaging, and inconsistent enforcement.' Where the governance is 'chaotic, uncoordinated, inconsistent, and unpredictable', or where officials fail to follow the rules they themselves imposed, public compliance is abandoned, and public trust is demolished and the capacity of states to effectively respond to pandemic is diminished.

A Question of Trust

Public trust, while not easily quantifiable, is arguably central to the most stable and effective governance and institutions. Poor response can result in poor evaluation by the public, whereas successful management can strengthen a regime of any type. The perception of control, arguably successfully managed by the entirely contrasting regimes of China and New Zealand, has correlated with a more favourable view of the system in which those decisions are operating. For democracies, a lesson of the pandemic may be to ensure active engagement, and wide participation beyond the technocrats. As evidenced by Taiwan, 'the key to prevent tyranny in pandemic control is a transparent and responsive political process in which citizen activism is a crucial part.'

Even where the protection of public health may justify short-term limitation of political accountability through the legislature, there must be a robust commitment to public rationality through transparent decision-making processes, as this is essential to democratic discourse and, ultimately, a healthy democratic system.

By Carmen E Pavel (external contributor)

In a state of emergency, it is easy to believe that there are no limits to what governments must do to respond.  During the Covid-19 pandemic, we have seen this attitude at work in the policies various governments adopted. At time, nothing was considered too big a price to pay to prevent people from getting infected and dying from the Covid-19 virus. From ‘shoot to kill’ orders in Philippines for those who were thought to be violating strict lockdowns, to people bolted shut in apartment buildings in China, to workers beaten by the police on the streets of India, trying to get home with only hours’ notice of strict curfews, to thousands of families unable to return home to Australia for more than a year due to the abrupt shutting down of the borders, people were affected by rules changing at the drop of a hat with little notice or ability to plan. Like the virus itself, these sudden changes in rules wrought chaos, death, and untold stress on millions of people. They exemplify violations of one of the most prosaic, but important, rule of law requirements, namely the requirement that rules are made and advance notice is given, so that law’s subjects are appraised of its demands and are given a chance to comply with it. This is also known as the requirement of prospectivity, and along with other rule of law requirements such as legality, generality, publicity, stability, capacity to reflect clear, reasonable, and mutually consistent demands on individuals, proportional punishment, easy access to courts and an independent judiciary represent important standards against which we judge legitimate, responsible law-making in non-emergency times.  I want to make the case that most of these rule of law requirements are essential in emergency situations such as pandemics, and that the failures in observing them as recorded in various countries raise serious questions about the legitimacy of those policies.

The impact on human welfare of the most extreme of these measures is obvious. The fact that the measures in China were taken suddenly, without advance warning, means that individuals and families did not have a chance to properly plan for food and medical supplies. All over the world, lockdowns imposed on short notice have led to sick, vulnerable, or elderly people being left without vital supplies, which resulted in needless suffering and early deaths. The large decrease in human welfare as the result of some of the pandemic policies were a combination of many factors, including the stringency of the measures. People in Vietnam faced such strict restrictions that at times, they were not even allowed to go out for food. Indeed, even in the UK, people died alone and were not discovered for weeks. Overall, there was an excess of 26,000 deaths compared to previous years from non-Covid-19 related causes, including from social isolation and disrupted services. However, it is the absence of governments providing proper notice of these policies, in addition to their stringency, which should give us pause. This is because the negative effects of long periods of restrictions were magnified by denying people the ability to plan and adapt to them.

At the less stringent end of policies are those regarding travel restrictions, with countries changing policies literally overnight. Travellers were caught unaware when they landed, or in a transit airport on the way to their destination. Some were forced in quarantine facilities at their own expense, which in the UK amounted to more than £10,000 for a family of four, expenses which were unplanned and which many could not afford. Some were able to travel fully knowing the consequence of having to quarantine, but others were only appraised of the news when they landed. Worse, in some cases, quarantine rules were applied retroactively, as in Switzerland, when British and other foreign tourists travelled there, expecting a quarantine-free trip according to the rules at the time, only for the Swiss Government to do a U-turn and introduce a quarantine, days after the tourists had arrived. Families with small children were forced to quarantine in one room without the possibility of going out for any reason, adding stressful insult to costly injury. No wonder some of them escaped to France under the cover of the night, an act of justified civil disobedience.

Changing rules during a pandemic is an appropriate course of action, and the choices which had to be made were difficult and tragic, as policymakers were trying to balance different welfare, health, and human rights considerations. But many governments went too far in abandoning any consideration of the prospectivity, stability, and publicity of new rules. Thus, it seemed no cost was too great in order to prevent the spread of the virus. Yet costs can be too great, and for many they were. These rule of law requirements are there to protect fundamental interests individuals have in being able to plan their lives free from arbitrary authority, without incurring unnecessary, even catastrophic costs, without having to be separated from loved ones for months at a time due to lack of notice. It is clear that governments made such changes without adequately considering the costs of imposing rules on such short notice, as evidenced by the fact that some of them walked back the changes when the costly consequences became clear, as the UK did for new quarantine rules imposed overnight on people coming from South Africa and other African countries in the wake of the discovery of the new Omicron variant.

Individuals have interests in being protected against the health risks of the pandemic, but such interests have to be safeguarded without subjecting individuals to measures which are more dangerous than the virus itself, and result in a much greater reduction of their welfare. Two years on, we still expect rules to change at will and overnight, and we have not seen many governments making explicit commitments to essential rule of law principles. Responsible policymaking during the pandemic must still follow constitutional and rule of law constrains if it is to be legitimate and to adequately balance competing interests.

The lesson we might take from all of this is that prospective legislative and constitutional change is needed to ensure that rule of law principles remain a priority of government action during conditions of emergency. Such change will provide opportunities for further strengthening principled constraints on policymaking, so that, even during pandemics, people’s lives do not hang on to the whim of well-meaning but struggling public officials who, in the name of protecting us from one danger, inflict longer term harm, both on our lives and on our constitutional commitments.

By Thomas Schramme (external contributor)

The fact that health is a form of wealth has perhaps never been as obvious as it is today. Increasingly, human health is being perceived from an economic point of view. Relevant policies additionally bolster and encourage such a perspective. More specifically, the Covid-19 pandemic has led to a new form of perception of other people: as competitors and potential threats to our individual health capital.

Any person carrying an infectious virus poses a threat to the health of others. This is not a new insight. Human history has seen plenty of similar scenarios. Public health measures have included liberty-restricting measures, such as bans on certain conduct, or quarantines. In this respect, Covid-19-related policies simply differ in scale. Still, a new quality has been reached, which involves a perspective on health in terms of a competitive asset. I explain this development with a focus on two aspects: the increased value of health and the spotlight on health as an individually and socially enabling factor.

The value of health

From an individual point of view, health is not simply the absence of disease. It is a condition that has value over and above medical norms. The value of health is often hidden from view, but we become fully aware of it when we are sick. When many people around us become ill or even die, we realise how cherished a possession health really is and how vulnerable we actually are.

During the Covid-19 pandemic, the value of health was furthermore emphasised by numerous public health measures. The value of health was politically raised to a point that it could easily be perceived as more important than individual freedom – though we need to appreciate differences between the values of individual health and population health. Still, a pandemic surely increases the perceived value of health for many.

These days, we additionally appreciate the instrumental value of health: its value as a means to pursue all kinds of activities. For instance, many self-employed workers cannot earn money when put in quarantine; care homes cannot maintain their business without a sufficient number of healthy staff. From an individual point of view, one's health status is the kind of asset that can be invested and converted into activities, such as pursuing a career, making pleasurable experiences, or supporting one's loved ones.

Health status can be manifested beyond the medical norm of health as absence of disease. Even when a person is not acutely ill, threats such as high infection rates in the community can reduce the relative instrumental value of individual health. A poor health disposition or lack of fitness goes along with a lower health status. The perception of people with low health status is often accompanied by social value judgements, for instance ascriptions of guilt and vice, which might further impact on health.

Whether a relatively bad health status should be deemed unfair depends on numerous considerations. Social justice theorists will likely condemn disadvantages that are due to circumstances, as opposed to voluntary choice. This common distinction, however, seems hopelessly simple in relation to the complex determinants of individual health status.

Others as threats

A new dimension has become more vivid recently, which adds to the established qualities of health. During a pandemic, we realise how other people can impact on our own health status. Seeing other people as threats and consequently as competitors comes with a Gestalt switch that can be analysed in economic terms.

For most of the time in human history, individual health status has been seen as depending on a combination of luck, circumstances, and one's own behaviour. During a global pandemic, we easily realise that our fellow human beings can actually pose a threat to our health, both directly and indirectly. They are direct threats when they are carriers of a pathogenic virus, such as Covid-19. They represent indirect threats – perhaps better called risks - when they are themselves more likely to become infected, for instance because they are not vaccinated or do not follow lockdown rules. The perception of others as threats commonly goes along with stereotypes and discriminatory attitudes towards some groups of people. During the Covid-19 pandemic, people of East Asian heritage were especially targeted.

Health-related threats and risks posed by others are of course more easily visible during a pandemic. Yet they are constantly present, if in other forms. I have already alluded to the fact that any pathogenic virus can reduce one's health and thereby undermine the real value of one's health status relative to other people. For example, a self-employed worker can also be held back from earning wages by a common flu; a patient's surgery might be postponed due to an emergency case that has been caused by the reckless or illegal behaviour of fellow citizens. In other words, the diagnosed scenario of competition for a scarce resource, individual health status, is ubiquitous.

Health capital

The perhaps unusual notion of health capital allows us to combine the different strands of developments into one unifying category. Health capital is hence a potentially valuable analytical concept. It has the additional benefit of allowing for a non-moralised assessment of social developments and perceptions in terms of self-interest, without excluding normative perspectives on the just allocation of health capital.

Individual health capital comprises, firstly, a specific malleable health condition, which we can call health stock. This aspect is most clearly related to traditional medical perspectives on health. A certain genetic disposition, for instance, but also one's investment – say, visiting a fitness studio or living a healthy lifestyle – constitute and maintain one's health stock.

Secondly, enabling social conditions, which comprise far more than the provision of traditional health care, are also part of one's health capital. Social epidemiologists have rightly emphasised the significance of social determinants of health, such as being able to do meaningful work or being integrated in social circles. These are the means of health production.

The level of health capital is partly due to relational aspects that have been mentioned above. Other people can threaten to reduce one's health capital, or they can work to promote it. Their status is also positionally relevant in competitive scenarios. For instance, chronically ill patients are less able than others to compete for scarce places in higher education.

Health capital justice

The Covid-19 pandemic has highlighted many of the abovementioned dimensions of health capital and thrown up numerous concerns of justice in relation to them. Disadvantaged groups have suffered from the impact of the pandemic more than others. Although from a naive, purely biological point of view, the susceptibility to infectious disease would appear to be arbitrarily allocated in society, an analysis in terms of health capital allows us to explain the actual disparities. Different levels of health capital lead to variable levels of power to maintain health.

Putting the pandemic into the broader perspective of health capital allows us to avoid moralising attitudes, for instance towards citizens who refuse vaccination. Instead of blaming ignorance and belief on conspiracy theories, we better analyse the social situation as based on rational self-interest. The nature of the health maintenance dilemma we are facing in our societies is indeed similar to the established model of the prisoner's dilemma. After all, not getting vaccinated in a situation where all others opt for the jab is the most beneficial outcome from an individual, rational point of view. By using this model, we will quickly understand that we will not solve our health-related social problems by sanctions alone. Rather, we need a just allocation of health capital.

By Eric Winsberg (external contributor)

It is a home truth in philosophy of science that models are not, in the first instance, evaluated for their truth or accuracy, but for their adequacy for purpose. A model of the same system or phenomenon that is adequate for one purpose might be inadequate for another.  Consequently, if we want to evaluate how well models performed during the Covid-19 pandemic, we have to have a keen eye on their intended purposes.

So what purposes were these models intended to serve?  Two obvious candidates are prediction and projection. When a model is used for prediction, we expect it to tell us what state it will, in fact, be in in the future (and perhaps what path it will follow to get there). When a model is used for projection, we expect it to tell us what state the system would evolve into, conditional on various choices that we make as agents who act on the system.

If I am using a model, for example, to predict how much demand there will be for intensive care unit beds, or ventilators, or support staff, in my hospital system during a pandemic, then I am using it for prediction.  If, on the other hand, I am using a model to evaluate the likely effects of various possible public health interventions during a pandemic, then I am using the model for projection. How I evaluate a model will depend to a great extent on whether I intend to use it for prediction or projection.

When a model is intended for projection, it is likely that it will steer policymakers away from certain courses of action. For example, a microsimulation model developed by a team at Imperial College London (ICL, ie, the model used to generate the famous 'Report 9') is widely acknowledged to have steered UK policymakers away from ‘business as usual’ during the Covid-19 pandemic.

In general, if a model says 'if you do X, millions will die' and policymakers are consulting the model when they make policy choices, then it is unlikely that they will do X. This makes it difficult to determine whether the model made a correct projection concerning what would have happened if we had done X. It makes it difficult, but not impossible.  Sometimes, it will be possible to find datasets that can be used as controls. So, for example, though the model used to generate 'Report 9' was never used to make a projection for Sweden, a close cousin of the model was run by a Swedish group, as was the slightly simpler model used in 'Report 13'.

We can use these outcomes to assess how good the model was at projecting outcomes under relatively mild interventions.  If we assume that the projection made by the ICL team for the United States was intended to be more or less spatially homogeneous, we can use American states, like Florida, that used mild measures.  In most such cases, it certainly appears that the ICL models (both the Report 9 and the Report 13 variety) made overly pessimistic projections for these scenarios, particularly if we pay attention not only to the total number of casualties projected, but also the pace and tempo at which those casualties were expected to arrive.

Of course, defenders of the ICL model will be quick to point out that Report 9 contained the following proviso: the projections for outcomes in the absence of mitigation were applicable only in 'the (unlikely) absence of any control measures or spontaneous changes in individual behaviour'.  They will then point out that it is impossible to say of any place that there was a complete absence of any spontaneous changes in individual behavior.  This is of course true, even if extremely convenient.  Some have even argued that it is especially unfair to criticize a model like the ICL models for being overly pessimistic if it is in fact the case that it is the model’s projection itself that caused people to spontaneously change their individual behavior.

In light of this, many have explored the idea that, when a model causes changes in the behavior of the people it is modeling in such a way as to adversely affect its predictive abilities, this may not imply that a model’s 'suitability, adequacy, or usefulness is diminished' (van Basshuyen, et al). In fact, the authors suggest that we might want, under some conditions, to consider a model’s 'performative' impact to be a potential virtue.

Similar suggestions have been made in epidemiology literature: Biggs and Littlejohn (2021), for example, remark that '[i]nitial projections [of the ICL model] built in worst-case scenarios that would never happen as a means of spurring leadership into action' (92), while Ioannidis et al (2020) speculate that '[i]n fact, erroneous predictions may have even been useful. A wrong, doomsday prediction may incentivize people towards better personal hygiene'.

This raises an important question: should modelers pat themselves on the back when they build models that incorporate 'doomsday predictions' that 'incentivize people' towards the behavior that the models deem virtuous? Should we praise their efforts? I think the answer here has to be 'no'.  Changes in behavior away from what people would have done in the absence of the 'doomsday predictions' typically have costs. And one of the most important functions of models for policymaking is that we expect them to facilitate cost-benefit analysis.

Somewhat crudely (but only somewhat), we need accurate and reliable models to determine which behaviors are in fact the best ones to carry out. If the very purpose of the model is constituted in part by a prior assumption of what the best course of action is, then things have become unacceptably circular.

The whole enterprise risks undermining both the credibility of science and the rights of the public to have policy choices that reflect their own values, rather than simply those of the model makers. At the very least, the public deserves a say in this matter.  I talk about these issues in more detail in this recent film. Readers: do you want scientific model builders to have the goal of persuading people to change their behavior?  Or only of producing the most accurate possible projections?

The Covid-19 pandemic has posed significant challenges to parliaments around the world (Bar-Siman-Tov 2020). Parliaments have faced both political and operational challenges. The former has seen a sharp increase in executive rule-making powers in response to the pandemic that has challenged the influence and oversight powers of parliaments. While for the latter, parliaments have faced closures and suspensions as the pandemic struck. This paper starts from the point that the continued representation of citizens in parliament by legislators is essential for well-functioning countries during times of crisis. As such, lessons should be learned about how and why some parliaments were able to continue to operate throughout the pandemic, while others were closed for often lengthy periods.

However, surprisingly little has been written about the factors associated with whether a parliament closed due to Covid-19, or how long closures lasted in those parliaments that ceased to operate. In this paper, I use data mined from qualitative reports written for the Lex-Atlas: Covid-19 (LAC19) project to examine relationships between a country’s system type, degree of freedom, adherence to the rule of law and income inequality and the likelihood and/or length of parliamentary closures due to the pandemic. Prior to outlining these analyses, I will first discuss the LAC19 project and how the dataset used in this paper was developed.

LAC19 – The project and production of data

The LAC19 project was the brainchild of Professors Jeff King (UCL) and Octávio Ferraz (KCL) in 2020. The goal of LAC19 has been to track the legal and political responses to Covid-19 in around 70 countries through a series of reports written by country experts. These reports, averaging over 20,000 words, are written in adherence to a set Author Guidance Code (AGC). The AGC details both a set of questions that country authors must answer and the structure the report should take. Once submitted, the reports are subjected to a robust and multi-stage editing process by the Editorial Committee to ensure the structure and content of a report meet with the AGC. The design of this process ensures that the reports are not only comprehensive in their coverage, but that they offer the potential to make cross-country comparisons on the topics covered.

Despite the value of the reports for comparative study of national responses to the pandemic, the editorial committee recognised early on that the length of the reports presented a barrier to their use for such purposes beyond legal disciplines. It was decided to apply data mining techniques to produce a series of more manageable datasets. These datasets primarily seek to present information in a more simplified quantitative format, but also contain contextual and descriptive information in a qualitative format. Importantly, hyperlinks are included in the datasets that take the user to the relevant section of the country reports from which information is taken. The aim here is to improve the useability of the resource for the widest possible audience both for academic research and for use by policymaking practitioners. Presently, datasets have been completed on the emergency powers used to tackle the pandemic, the response of parliaments, and federalism - all of which will be made public in the coming weeks. Below I focus on data collected from country reports on whether a parliament closed and the length of any closures.

The closure of parliaments in 39 countries

As things stand, the LAC19 Parliaments dataset contains 39 countries. These countries, along with whether their parliament was closed or suspended in response to Covid-19, can be found in Table 1. We find that 23 of the 39 (59%) of the parliaments in our sample remained open during the pandemic. While this shows the descriptive value of the LAC19 data, the opportunity to link data to external dataset sources offers greater analytical opportunities.

Table 1: The countries included in the LAC19 Parliaments dataset and whether the Parliament was closed/suspended or remained open

System type and closures

Information on system type, provided by IPU Parline, means we can see if patterns of parliamentary closures were influenced by systemic factors. Figure 1 shows an alluvial plot where the different system types on the left axis flow to whether their parliament was closed or suspended on the right axis.[1] What this analysis shows is that system type has no demonstrable effect on whether a parliament is likely to remain open or closed. Thirteen of the 21 (62%) parliaments in parliamentary system remained open while five of the eight (63%) parliaments in each of the presidential and semi-presidential systems remained open.

Figure 1: Alluvial plot showing whether parliaments were closed or remained open for different system types

Freedom, rule of law, and income inequality

Whether a parliament was closed or not provides a binary ‘yes/no’ variable which can be modelled using a logistic regression. This analysis returns a probability of an event occurring (in this case a parliament closing due to Covid-19) given one or more explanatory variables. Here I run three bivariate (using just one explanatory variable to model whether a parliament was closed) logistic regressions. The first, shown in Figure 2, examines the relationship between the Freedom Score of a country and parliamentary closure. The Freedom Score is a measure of the degree of civil liberties and political rights provided by Freedom House, a US-based non-governmental organization. Scores range from 0 for a country that has no freedoms and 100 for a country that is completely free. To avoid measuring any effect on the score caused by the response to the pandemic, the 2019 scores for countries were used in the analysis. This also applies to the rule of law and inequality measures to follow. The range of scores in the LAC19 sample of 39 countries runs from 9 for China, to 100 for Finland, Norway, and Sweden.

The analysis shows a moderate negative correlation between Freedom Score and the probability of a country’s parliament having been closed due to Covid-19. That is, as countries become freer, the likelihood of the parliament having been closed falls. Across the LAC19 sample, the probability of parliamentary closure falls from around 63% for a country with the same Freedom Score as China, to around 35% for countries with freedoms like Finland, Norway, and Sweden.

Figure 2: Plot showing the results of a bivariate logistic regression modelling the effect of Freedom Score on the probability of a country’s parliament remaining open

The second analysis uses the World Justice Project’s Rule of Law Index score. The Index measures across eight dimensions to provide an estimate of how the rule of law is experienced in different countries. Scores run from zero for countries in which there is no experience of the rule of law to 1.0 where the experience of the rule of law is perfect. The range of scores is more limited than the Freedom Score, with Rule of Law Index scores in the LAC19 sample ranging from 0.39 to 0.89. The result of the analysis is shown in Figure 3.

As with the Freedom Score analysis, the relationship between the Rule of Law Index score and the probability of parliamentary closure because of the pandemic is negative. Simply put, as adherence to the rule of law in a country increases then the probability of parliament having been closed falls. This effect, however, is more substantive than the Freedom Score measure. Even given the more limited range of scores, the probability of parliament having been closed falls from 63% for countries at the lower range of scores to 35% at the higher range.

Figure 3: Plot showing the results of a bivariate logistic regression modelling the effect of the Rule of Law Index score on the probability of a country’s parliament remaining open

The final analysis of whether parliaments closed examines the effect of inequality on the closure of parliaments during the pandemic. The accepted quantitative measure of inequality is the Gini coefficient calculated by the World Bank and which measures the income inequality in a country. A country with a perfectly equal distribution of income would be assigned a score of zero while a country in which just one person had all the income would be assigned 100. The range of scores in the LAC19 sample runs from 27.2 for the most equal country (Belgium) to 53.4 for the most unequal (Brazil). The analysis is shown in Figure 4.

The relationship between income inequality and the probability of parliament having been closed is moderately positive. As income inequality increases, the likelihood that parliament has been closed due to Covid-19 increases. A country with similar income inequality to Belgium is predicted to have a 24% chance of having seen parliament closed. This rises to nearly 75% for a country with a similar income inequality as Brazil (although Brazil itself did not see its parliament close during the pandemic).

Figure 4: Plot showing the results of a bivariate logistic regression modelling the effect of income inequality on the probability of a country’s parliament remaining open

Summary

Modelling the likelihood of parliaments having been closed due to the pandemic shows some interesting trends. Proponents of greater freedoms, the rule of law, and increased income equality have long stated that positive policy outcomes will follow from improvements in those areas, and they will be pleased by the results outlined above. There is evidence that parliaments in countries with greater freedoms, greater adherence to the rule of law, and greater income equality were more likely to remain open.

The analysis, partially conducted to display the capabilities of the LAC19 data, is limited, but clear trends for all three explanatory variables suggest a link between attributes widely viewed as positive and an ability for citizens to continue to be represented in parliament during a period where important, and often controversial, policy decisions were being made. Further analysis of these factors is essential if we are to understand how to keep parliaments open and operational in future crises. Having analysed some explanations of why parliaments closed, I will now turn my focus to the parliaments that did close as a result of Covid-19.

Parliaments that closed: why did the lengths of closure differ?

As detailed above, differing factors seemed to influence the likelihood of a parliament closing during the pandemic. In the second part of the paper, I turn my attention to the 16 parliaments that did close. The granularity of the LAC19 data allows the length of parliamentary closures to be calculated. Now, this is not as easy as it might initially sound. Differences in how and when parliaments meet make calculations difficult, as does accounting for pre-planned breaks in parliamentary activities. For example, the National People's Congress in China meets very rarely, and the UK Parliament’s closure spanned over a period of recess. However, for the ease of this analysis, I calculate the number of days a parliament was closed from the first day it should have met to the day it reopened after closure.

The number of days that the 16 parliaments in the LAC19 sample closed for is shown in Figure 5. We can see that the number of days of closure ranges from seven while the Legislative Assembly of Costa Rica decamped to a nearby museum to the 194 days that the Canadian Parliament remained closed. Below I will run bivariate analyses of the length of parliamentary closures using the same three explanatory variables I used in the analysis above. Unlike with the binary ‘yes/no’ variable indicating whether a parliament closed or not, both variables in these analyses are continuous. This means that I can use a simple linear regression model which plots a trend line on a scatter plot. The first analysis uses the Freedom House Freedom Score and is shown in Figure 6.

Figure 5: Number of days parliaments were closed for due to Covid-19

Figure 6: Plot showing the correlation between the number of days a parliament was closed and a country’s Freedom Score

Figure 6 shows a moderate negative correlation with a higher Freedom Score being associated with fewer days of parliamentary closure. What is evident, however, is that Canada (very top right of the plot) is a significant outlier. With a very high Freedom Score of 98, yet a total of 194 days of parliamentary closure, Canada is positioned a long way from the trend line. As a result, I ran the analysis again with Canada removed and this is shown in Figure 7.

The result is quite remarkable. The correlation becomes strongly negative with a clear relationship between higher Freedom Scores and the number of days parliaments were closed. Indeed, a country with a Freedom Score like China and which had seen its parliament closed due to Covid-19 would expect that parliament to remain closed for over 100 days. Conversely, this number drops to around just 20 for the countries with the highest Freedom Scores.

Figure 7: Plot showing the correlation between the number of days a parliament was closed and a country’s Freedom Score with Canada removed

Figure 8 shows the correlation between the Rule of Law Index score and the number of days parliaments were closed. The analysis shows that there is no relationship between the two variables. Yet once again, Canada is an obvious outlier. Running the analysis in the absence of Canada (Figure 9) again shows a strengthening of the negative relationship. While not as dramatic a change as with the Freedom Score analysis, once Canada is removed there is a clear correlation between greater adherence to the rule of law and shorter periods of parliamentary closure due to the pandemic.

Figure 8: Plot showing the correlation between the number of days a parliament was closed and a country’s Rule of Law Index score

Figure 9: Plot showing the correlation between the number of days a parliament was closed and a country’s Rule of Law Index score with Canada removed

The final analysis includes the Gini coefficient that measures income inequality. As might be expected at this stage, I run the analysis twice with Canada included in Figure 10 and excluded in Figure 11. Figure 10 shows a weak negative correlation between income inequality and the number of days parliament remained closed, with greater inequality associated with slightly shorter closures. But Canada with relatively low-income inequality and a high number of days during which its parliament was closed is again a clear outlier. Removing Canada in Figure 11 sees the direction of the effect of income inequality reverse with greater inequality being associated with longer periods of closure in the absence of Canada. It must be noted here however, that income inequality is a poor predictor of the number of days parliaments remained closed due to the pandemic.

Figure 10: Plot showing the correlation between the number of days a parliament was closed and a country’s income inequality

Figure 11: Plot showing the correlation between the number of days a parliament was closed and a country’s income inequality without Canada

Summary

It will hardly come as a surprise to you at this point that Canada represents a deeply problematic case for the comparative analysis of parliamentary closures during the pandemic. Although beyond the scope of this paper, a case study of Canada is needed to determine the additional factors that led to such a long period of closure in a country that is very free, adheres closely to the rule of law and has relatively high-income equality. The value of the LAC19 resource is that this is exactly the sort of work that can be conducted. Preliminary analysis using the quantitative data can then lead to a deeper analysis using the 20,000-plus word report which then, in turn, can guide further quantitative analysis. The opportunity to conduct this kind of work makes LAC19 unique as a Covid-19 resource.

Away from the self-congratulation though, the analysis of the number of days during which parliaments were closed during the pandemic shows a very strong relationship between low levels of freedom in a country and longer parliamentary closures. This doesn’t seem to extend to the rule of law in the same way as the analysis in the first half of the paper, and income inequality appears to be a poor predictor of how long parliaments were closed. Why more authoritarian countries had longer periods of closure raises interesting questions. For example, is it that the executives in more authoritarian states can impose their will versus parliaments? Or is it that weaker parliaments in such systems are less interested in attempting to meet because of weaker electoral incentives? I hope that these are the sorts of questions, amongst others, that you will want to explore using the LAC19 resource.

[1] Note that IPU Parline does not offer a system type for Hong Kong which explains why the number of countries total just 38.

By Erik Angner (external contributor)

'You can’t derive an "ought" from an "is",' said David Hume, the Scottish Enlightenment philosopher. If you want to know what ought to be – what’s right, just, and fair; what’s worth doing; what makes for a life worth living; and what’s a good society – you can’t just deduce the answer from claims about what is – non-moral facts about the world. The principle is sometimes elevated to the status of 'Hume’s Law.'

The point is simple. But it’s easy to forget.

Throughout the pandemic, we’ve been encouraged to 'Follow the Science.' If all that means is that our decisions should be informed by the best available scientific knowledge, the injunction is right and proper. The scientific method still offers the most dependable way to discover how disease is transmitted, how pandemics progress, how school closures and lockdowns affect the wellbeing of the youth, and so on. Following the science in this sense doesn’t guarantee that good things will happen. But it sure beats the alternative of barreling along without the information.

If following the science means is that we ought to do whatever science says we ought to do, however, we’re running afoul of Hume’s Law. Science can tell us what is the case; it cannot by itself tell us what we ought to do. Science can tell us it will likely rain tomorrow; it cannot by itself tell us whether we ought to bring an umbrella. If you come to the conclusion that you should, it’s because you have values, preferences, or desires that say you ought to try to stay dry.

The pandemic provides us with many other examples of scientists getting in trouble with Hume’s Law.

In September of 2020, the Swedish Royal Academy of the Sciences convened an Expert Group on Covid-19. Its primary aim was to review what was known about the novel coronavirus and the disease it causes, and to identify gaps in our understanding of both.

The experts in question were drawn from a narrow set of disciplines. All eight members were professors of medicine or biomedical sciences. The Academy may have anticipated criticism on this account. Its Secretary General went out of his way to specify the Expert Group was to maintain a 'scientific focus.' He added that the group’s brief did not include assessing the performance of Government agencies or economic consequences.

The final report of the Expert Group was released in November 2021. A headline recommendation related to facemasks. The Group said that Government agencies had failed clearly to communicate the benefits of facemasks. It went on to argue that facemasks should promptly have been made mandatory in all indoor settings outside of one’s home – especially on buses and trains. In their words: 'to quickly suppress the contagion we need to use all the tools in the toolbox, and that includes facemasks and ventilation.' (A journalist noted that the members of the Expert Group did not themselves wear facemasks during the press conference where they released the report, in violation of their own recommendation.)

The point here is not to argue for or against facemasks. The point is to draw attention to the nature of the recommendations. There’s no doubt that the Expert Group drew normative conclusions – conclusions about what ought to be. The scientific facts about facemasks are obviously and immediately relevant to any decision about whether they should be made mandatory. But a strict scientific focus does not allow us to determine if they should be – just like the probability of rain doesn’t by itself tell us whether we should bring an umbrella.

I am sure the Expert Group was not involved in an elaborate scheme of deception. They probably believed, in all earnestness, that the relevant science settled the question about whether facemasks should be mandatory. The role that values play in policy recommendations is often opaque. That’s true even for highly accomplished scientists, like the members of the Expert Group. As obvious as Hume’s Law is in theory, as easy it is to overlook in practice.

The irony is that the recommendation would likely have been more compelling if the case for it had made explicit reference to values. A facemask mandate for adults does not impose large burdens on the population, especially if the facemasks are free and available to all. The burdens of a facemask mandate are relatively equitably distributed. (I say ‘relatively’ since facemasks impose a differential burden, eg, on the hard-of-hearing.) Forcing people to wear facemasks outside of the home is not a major infringement of their freedom or autonomy. It doesn’t limit their ability to form and execute plans for their own lives. And we can’t reasonably reject every social contract that imposes small burdens on some people in order to prevent illness and death in others. Explicit attention to the values involved in the decision to impose a facemask mandate makes the case easier to accept.

Compare a facemask mandate for adults to 'societal lockdown,' which the Expert Group described as a 'success factor' in pandemic policy. A lockdown imposes very substantial burdens on people. Those burdens are sharply unequally distributed. Some people would find a lockdown easy. Maybe they live happy and comfortable lives in detached homes with yards and gardens, exercise equipment, libraries, and wine cellars. Most people do not. Some live in cramped apartments; some cannot afford not to go to work; some are dealing with problems related to drug abuse and domestic violence. A lockdown involves radical infringements to a person’s liberty and autonomy. It imposes sharp limits to a person’s ability to form and execute a plan for their life. And at least some social contracts that require one person to suffer greatly in order to protect another from misfortune can reasonably be rejected. Explicit attention to the values involved in the decision to impose lockdowns makes the case harder to accept.

Ignoring the values that factor into our decision-making leads to bad decisions, both in our public and private lives. While science can reveal costs and benefits of various policies, we need values to balance the one against the other. Shutting one’s eyes to the role of values obscures the nature of policy disagreement, since it makes disagreements rooted in different value systems seem like disagreement about science. Ignoring the role of values also risks putting decisions in the wrong hands. If you have a strictly medical question, a professor of medicine may well be the person to ask. If you have a question about values, that professor has no particular expertise. Ignoring the way in which values inform policy decisions short-circuits people who do have professional expertise in normative matters, including philosophers. But more importantly, it short-circuits the public that’s on the receiving end of any policy. At the end of the day, public policy must be responsive to the values of the population in whose name policy-makers take action.

It is sometimes suggested that talk about values is dispensable. 'Who’s to say?,' skeptics will ask, in a way that suggests values are best avoided. But in public policy they’re unavoidable. The choice we’re facing is not whether we should depend on values in our deliberations or not. Instead, the choice we’re facing is whether we’re willing to articulate our values, expose them to scrutiny, and defend them to each other. The alternative is to pretend values don’t matter, wing it, and go with the feeling in our guts. Phrased in this way, the answer is clear.

By the end of their report, the Expert Group calls for a 'deep ethical discussion about objectives and consequences in a pandemic.' One can only agree.

By Emily Barritt and Carmen Pavel (external contributors)

People bolted shut in their apartment buildings in China for weeks on end; workers beaten by the police in the streets of India trying to get home with only hours’ notice of strict curfews; children unable to leave their homes for months in Spain; parents systematically separated from their new-borns in Slovakia. These are only some examples of policies which raise important questions about the legitimate use of government power during the Covid-19 pandemic.

In all the urgency of halting the progress of the virus, there was little opportunity, or indeed appetite, to critically assess the policy choices that lay behind government pandemic decision-making across the world. As a result, there was insufficient scrutiny of the powers used by governments to implement those choices. Why this narrative has been so quiet is understandable – the virus has wrought indiscriminate devastation and the fear of the destructive unknown dominated how all of us have responded. A common error in collective decision-making, however, is for the urgent to replace the important and this mistake characterises how many governments have responded to the crisis.

In this blog symposium we begin a careful but critical conversation about the scientific, ethical, and legal choices that have been made by governments in forming pandemic policy. We open this conversation acutely aware of the toll many have borne, and continue to bear, as a result of the virus; in all the ways its devastating impacts have manifested. This is not intended as some provocative academic debate between those in an ivory tower who have, for the large part, been able to carry on their privileged existence. Instead, it is a response to the duty that comes as part of our privilege and from a shared concern about how government power has been used and abused in the face of this pandemic.

1. Science and Policy

Shaping government actions in response to Covid-19, have been a series of scientific models about how the virus spreads, how to reduce rates of infection, and ultimately how to stop people from dying. Early on in the life of the pandemic, the ugly spectre of heard immunity was posited as a possible and necessary goal, that might be achieved by not acting at all. In the UK in particular, there was then a dramatic swing from a mercenary pursuit of a population-wide immunity to complete restriction of liberty without more reflection on the grounds for alternative strategies in between. In part, these wild shifts were shaped by rapidly changing models as scientists scrambled as much as governments to understand this new phenomenon. Demonstrating that the relationship between science and policy is not easy, policy choices have demonstrated that the slogan ‘follow the science’ has many meanings, not all of which are defensible as models for public policy.

The complexity of this relationship is hardly a novel phenomenon. In the context of environmental decision-making, for example, scientific uncertainty about the impacts of environmental harms is a guiding concern. As a result, environmental lawyers have developed principles to help temper the inherent uncertainty in making choices about the environment.

Science and policy need to be mixed with care, remembering that scientific claims are never value neutral, as Erik Angner and Eric Winsberg explain in their contributions. Further, pandemic policy appears to have been shaped by scientific models without sufficient scrutiny of their purpose or value. As a result, models can incidentally shape behaviour rather than accurately predict it.

Failing to address these value-based and purposive considerations thus elevates expertise to a form of technocratic decision-making that lacks the necessary democratic scrutiny and accountability. Joelle Grogan addresses these concerns in her piece, and further highlights the problem of elevating certain forms of expertise over others.

2. Ethical trade-offs

Alongside the complex calculations about scientific risk, were a set of ethical trade-offs that, for the large part, governments neglected to consider. This was not simply a question of stopping the virus versus maintaining economic development, as much of the discourse seemed to imply. In the all-consuming desire to prevent people from dying from this terrible virus, questions about who else suffered were suppressed and the consequences of draconian action delayed. The cancer patients who have had essential treatment delayed, the mothers who gave birth alone, the people in care homes kept from vital loving contact, the victims of domestic violence locked in with their abusers, and the children, particularly those from economically marginalised backgrounds, who have lost significant development and learning opportunities are all deserving of thoughtful consideration.

A more subtle, but equally difficult ethical question that has been exacerbated by the pandemic, has been the way in which pandemic responses have shaped our view of the other. Thomas Schramme’s contribution addresses the issue of health capital, highlighting the ways in which the pandemic has heightened inequalities around health and the sense in which others are a threat. An acute example of this is the way in which racism has intensified against people of East Asian heritage. But the delicate and difficult task of balancing these competing and complex interests has been neglected, leaving open the possibility of other, more serious crises in the future.

3. Legitimate exercise of government power

Finally, at the heart of our concerns about the pandemic response, was an unprecedented and extreme exercise of government power. Tim Fish Hodgson and Melanie Murcott explore one such example of a tobacco ban introduced by the Government of South Africa, designed to free up hospital beds during the crisis. However, this is not simply a question about unprecedented restrictions of liberty and the forms of authority used to enforce those restrictions. It is also about how those restrictions were created. The rushing through parliament of unscrutinised legislation to creates additional, unchecked power for the sitting government, is never an appropriate, constitutional response. (This all goes without saying that in imposing restrictions, there have been notable examples of government actors failing to abide by their own restrictions or relying on exceptions ordinary citizens were kept unaware of.) Crucially, as David Mednicoff explains in his contribution, even before the pandemic, the creep of executive power permeated many democratic jurisdictions. Covid-19 restrictions simply served to amplify this problem.

We operate within constitutional frameworks because we recognise that government power should always be restrained and supervised. But in responding to the pandemic these foundational constitutional principles have been neglected. Constitutional provisions and the rule of law are not attractive artifices to signal you are the right kind of state, they are essential safeguards for when things are difficult.

4. The search for principle

In beginning this conversation, we want to work towards a set of principles that guide how governments respond to emergencies like pandemics. Principles that shape what restrictions on liberty are justified, how to use science well, and how to balance difficult ethical trade-offs. It is not sufficient to have a pandemic response that focuses solely on procuring equipment and border closures. Our pandemic responses also need to contend with the profoundly hard choices that need to be made, and principles can help.