January 2022 marked two years since the novel coronavirus ‘COVID-19’ emerged in Wuhan, China. In this latest podcast for the RevDem Rule of Law section, Oliver Garner interviews Dr Joelle Grogan (Senior Lecturer in Law at Middlesex University, London and co-investigator in the Horizon 2020 RECONNECT project) about the legacy of the pandemic for the Rule of Law, democracy, and other constitutional values around the world.

Oliver Garner: Two years on from the start of the coronavirus pandemic, you have recently published along with Alice Donald a RECONNECT policy paper for the European Commission on the implications of COVID-19 which provides insight into state governance and the Rule of Law, human rights and good governance during the pandemic. Could you summarize the headline findings of the paper for our listeners?

Joelle Grogan: Obviously I will be very academic about this and say that everyone should read it, as we have so much really fantastic research that brings out and qualifies a lot of the statements I am going to make! 

But here are the very essential and key findings that we had when we conducted this research. 

First, regime type is not a certain predictor of either the form, the speed, or the capacity of the response  to COVID-19.

When I talk about regime type, I mean whether or not you’re a full democracy, whether or not you’re an autocracy, or whether or not you’re on that sliding scale between the two. But it was also not a certain predictor of the outcome in terms of infection or mortality rates. A secondary finding concerned the form of power that was used – whether or not you declared a state of emergency, or instead relied on ordinary powers. That is actually less significant for understanding whether or not you were complying with the Rule of Law and other factors such as very robust mechanisms for democratic scrutiny or ensuring that powers were limited.

The final two findings were, first, that legal uncertainty and the issues of legality in the pandemic remain a significant concern right across the globe.  And last, but not least, in the initial response to the health emergency, the role of the EU was very much limited by a lack of capacity, lack of powers, and the lack of a clear role.  

Essentially, all states responded in a very nationalistic way; they looked to themselves first rather than looking globally.

I find it fascinating to hear that there doesn’t seem to be a correlation between regime type, uses of power, the form of power, and the outcome, but we will touch upon that in later questions. You mentioned that the final headline finding was the EU’s lack of capacity, and perhaps the most salient recommendation in the paper, as the addressee is the European Commission, is that the EU should assume a leading role in the preparation for future emergencies. 

Do you believe that the state of urgency prompted by COVID has deepened European integration as seen, for example, in the Next Generation EU Recovery Fund, or do you think it has loosened the ties between Member States, as we saw at the start of the pandemic when internal border controls were imposed? 

That is a fantastic question. I think for anyone who is really invested in the European Union or EU law, this is really something that we can never see as a binary between going forward or going backward. We often see in the context of EU integration or disintegration in some fields that it seems like there is a great leap forward in one area, and then two steps back in another, and one of the fascinating elements of the developments of the European Union is the constant interplay between the politics of state, the politics of international development and global progress, and what that actually means in the context of EU integration or disintegration. What we can say about the pandemic and what it has revealed about the European Union, especially in its response to a global health crisis is that there are very few competencies in its context. There is no button for the European Union institutions to press to say ‘this is an emergency’ when it acts as if it’s an emergency, and there are no particular powers for the European Union beyond some fuzzy coordination in the sense of health policy for the very good reason of democratic legitimacy.  Health policy revolves around states’ resources and the allocation of state resources, and this is something that is primarily a national competence.  

However, and this is particularly important in terms of what we discovered during the COVID-19 pandemic, when states respond so individually, and yet are so integrated at the EU level, this creates a huge number of issues for certainty, for legality, and for a lot of those critical elements of the Rule of Law. We had a lot of conflicts across borders, about just who does what, and when, and that created a lot of issues in terms of the most effective pandemic response within the European Union.

So, essentially, one of the findings of the paper is that, while respecting the democratic legitimacy that is needed for health policy as primarily a national competence, we need to look to the European Union to be more prepared and almost looking forward to the next crisis. 

In the development of EU policy, it always seems to be responsive – responding to the financial crisis, responding to the health crisis, etc –  rather than really actively looking forward, and having the resources, the capacity, and the general ability to prepare for the next crisis. I think the EU can, and should, assume a leading role in that preparation.

You said, quite rightly, that there is not a binary between more integration and less integration. Perhaps it could be the case that crises really sharpen our understanding of where the EU is actually needed, for example regarding recovery funds, and this could be an argument for greater subsidiarity. 

You mentioned state resources and why there is a national focus. Many of your key recommendations in the paper, such as broadening representation and decision making at all levels, enhancing participation through digitalization, and promoting coordination across all levels of governance, would indeed require more state capacity. Do you think there is a risk that such measures that would improve the quality of governance during a health emergency could reduce the speed with which governments can respond?

This is the key question, and it is a fantastic question. Going forward, this is certainly something that I want to focus on to bring g forward an answer.  My research was based on looking at the responses from 64 countries in the first six months, and then about a year later, and trying to see who responded best and what kind of lessons we can draw from that. One of the first and key elements is that speed is everything. 

When we look at the ‘best performers’ (a very qualified term that I am not going to go into) that we would like to emulate in terms of very low mortality rates, very low infection rates, and also high levels of trust in governments – New Zealand, Rwanda, Taiwan, South Korea, Hong Kong –  the common element is how fast their response was.

But we also need to look a little bit further into that, and we can actually see that the governance up to the point of the emergency, and also the quality of governance after the point of emergency, did still involve these elements. In terms of Taiwan, Singapore, and Hong Kong, their experiences of past pandemics means that they had reformed their laws in preparation for the next pandemic. In New Zealand, they had this quality of governance that is premised very much on public trust, on legal certainty, on legality, and on engagement. So New Zealand had this broadening representation going into the pandemic and they certainly had it throughout the pandemic. 

When I talk about broadening representation this actually matters very specifically as an emergency extends. At the point when this podcast comes out, we are marking two years since the pandemic, but we are still seeing the same critical issues of Rule of Law compliance.  The primacy placed on a certain small number of voices behind closed doors is very opaque in reasoning, on ideas, and on when measures should be introduced or removed.

When we talk about broadening representation we are talking about preparation in the form of law for the next emergency, but also to try and tackle those ‘shadow pandemics’ that are parasitic on the current one, such as the rise in domestic violence, issues of education for children, and rising poverty throughout the world.

Broadening representation means going forward with reform, but it also concerns how we deal with emergencies when they extend beyond that immediate moment of response.  

You mentioned in your answer to the first question that one of the key findings in the paper is that the form of power used – emergency or ordinary – is less significant than the presence of factors such as democratic scrutiny or time-limits. I still find myself intrigued by constitutional systems that did not need to enter into a state of emergency, either constitutionally or ad hoc, to tackle COVID. 

Of these countries that did not use emergency powers, do you think it says more about the preparedness of these systems, for example because of previous pandemics as you mentioned in your last answer, or is this more indicative of the severity or lack of severity of the pandemic in these areas?

One of the most fascinating things for me when I looked at state responses globally was the difference between those who declared an emergency and those who didn’t. One of the most fascinating findings was the number of different reasons for why states did not declare an emergency. It went from everything ranging from is not being  legally possible, for example, in Ireland the constitutional provision for the declaration of a state of emergency is based on whether or not there is war or armed aggression, to a lack of any specific provision for emergency in general – for example, in Japan there really isn’t a constitutional provision for the declaration of a state of emergency. But we also saw states that created new states of emergency, for example France and Bulgaria, which are quite concerning in terms of design because there were other provisions that were essentially more appropriate. 

Other states just found it most appropriate to use ordinary law and the tools that were available in ordinary law were preferable. There is one argument that says this is actually a good thing, because we would imagine that ordinary law has higher levels of scrutiny, and better safeguards against the misuse or abuse of law. 

But unfortunately, and Poland is an example of this, some states might have chosen not to declare a state of emergency because the emergency provisions themselves have higher levels of control, and have stronger safeguards than in ordinary law. 

So, ultimately, there are many different reasons behind the choice whether or not to declare a state of emergency, but primarily it can just be political. If I were to be diplomatic, I could say it is about what is the most efficient law to use, or if I’m being less diplomatic, I might say it’s about the easiest form of law for the executive  to use in the face of an emergency. 

Perhaps an observation could be that it depends on social practices as well as how much legal regulation needs to be used. We’ve seen that a legacy of the SARS pandemic in East Asian countries is mask-wearing, which was alien in the country we’re both living in now, the UK, until this pandemic. But now I think we have the situation where people will still be wearing masks although it is not legally mandatory at this point. And we see softer regulations, such as Transport for London making it a condition of carriage, so my own early observations could be that emergencies and even legal regulations won’t be as necessary if social practice is geared towards preventing further harm. 

Oliver, I will compliment you on that, as the key finding which unfortunately for legal academics like us is not very quantifiable, is that if you are looking for a single indicator of the most successful response to the pandemic – however this is defined –  it’s public trust. 

Those who have trust in the government and therefore have followed soft measures have had better outcomes and better responses.

So I completely agree with your point. 

Maybe we will see when the next pandemic happens what the response will be and whether these practices have been imbedded. You’ve mentioned across our conversation the extensive comparative research that you coordinated on the impact of COVID-19 on constitutions in 64 countries across the world. 

This is perhaps connected to our previous question, but do you have any examples from this sample of where it might be said that there have been positive effects for constitutional values, such as the Rule of Law, arising out of the pandemic? And if there have been, do you think there are any lessons for other countries that can be drawn from this?

I realise that so much of the research that I have been discussing, and the research that I’ve published, is highlighting critical on-going issues for the Rule of Law.  We really have seen the exposure of what happens when things go wrong; we’ve seen those critical issues of legal uncertainty and the issues of legality when states simply do not have appropriate tools for dealing with pandemics. But one of the exciting things that we also do see is democratic innovation, which we will talk about a little bit later, but also where the Rule of Law has been so important. 

I know that I am bringing up New Zealand a lot as my favourite country in terms of how it’s responded, but what we saw is almost a prior commitment to the Rule of Law value of legal certainty, but also to the governance values of transparency of communication during the pandemic response.

We talk about what is the best power to use, and you very brilliantly raised soft power and recommendations, and how they can work well when they are clear and followed by everyone. 

This really worked very well in the context of New Zealand – one of the elements that we highlight most is that, when there was criticism of the legality of measures that were being introduced by the government in New Zealand that they were not founded on a clear legal basis, the executive responded very quickly to remedy this. There was a very fast response in terms of accountability, and there were so many different great accountability mechanisms in place in New Zealand that came into their own. This created a very good pandemic response connected not only to lower infection and mortality rates in a global sense, but also in terms of public trust. We can also look to the thumbs-up of agreement in terms of the election of how the Rule of Law and how adherence to these good governance measures, did lead to a better response to the pandemic. We did see good practices emerging, but we do also see very concerning on-going practices.

You mentioned the importance of those who create the rules actually abiding by those very rules, and of course we are in a situation in the UK where all political bandwidth has been taken up by what is being called ‘party-gate’ and the allegations of reports of parties and breaches of the lockdown rules happening in Downing Street involving the Prime Minister. 

A question that comes to my mind now is have you seen anything in your research that suggests that, if the public feels that those who govern them are not complying with the rules, this lessen compliance? 

Certainly, we see a lot of criticism that has been raised in many countries throughout the world in terms of the discriminatory application of the law. Now, that is a very legal way of saying that the rules are for some people, but not for those in charge. In a number of states in the world – I’m thinking of Turkey, India etc –  one of the criticisms that was highlighted in terms of government response is that they seem to be applying the COVID-19 rules to those who are not associated with the governing political parties. We had big election pandemic campaigns going on for the political parties, but anyone that was associated with those that might be critical of government were fined, banned, or even put in jail. 

When you apply law in a discriminatory way, especially when the rules seem to apply to the people and not to those in power, this fundamentally undermines whether or not the rule is efficacious, and whether or not the measures that are trying to prevent infection actually succeed in that goal. 

Now this is very critical in terms of the life and death nature of trying to control pandemics. So, yes, when you go against the very fundamental premise of the Rule of Law that no one is above the law – no king, no Prime Minister – you are undermining the very efficacy of that law. 

For my next question, I want to look at a broader perspective and ask you whether you believe COVID-19’s impact on the Rule of Law and constitutionalism in general can be compared to other world-historic events? Perhaps the most proximate example was the impact of 9/11 for security and civil liberties in the ensuing war on terror.  Have we seen any such transformations from similar health crises, such as Spanish Flu, in the past?

This is a question, especially at the very beginning of the pandemic, that I was asked so often, and I always underlined how much the world has changed in the last 100 years in terms of digitalization, how globalised the world is, and how fast the infection spread just because we are so inter-connected. There is such travel everywhere, so that instead of being a matter of weeks or months for the infection to spread across the world, it was days. But in terms of comparison, this is a very major event, and I know that so many people discuss how and when we are going to return to the ordinary. 

Certainly with the advent of vaccines there was the assumption that this is going to fix everything, that we are going to go back to the way that everything was, that we are not going to wear masks anymore, and that we are going to return to ordinary governance. Now, putting to one side the critical issue of the inequity of vaccines between the global North and the global South, we are now discussing how the pandemic is becoming endemic, and how its going to be something else that we deal with. 

But one of my concerns from a legal perspective is how normalized certain ways of governing have become. Governments have made so many decisions without a lot of oversight because we have shown a lot of deference to the executive during the emergency.

Often this is for good reasons. But one of the prime concerns is how normalized that decision making will become. A great quotation that we have from the author of one of our papers is that ‘it is easier to assume power than to give it back’. The critical issue is that governments making decisions which limit very fundamental rights without parliaments is going to be normalized. And people are going to find it quite normal for governments to be making these very huge decisions without a lot of democratic input or democratic oversight. When we look to returning to the ordinary, one of the things I would be most concerned about is pandemic governance being normalized. That is not something we can talk about now because we are in that fuzzy phase of two years in when a lot of people think the pandemic has gone, and a lot of other people are still wearing their masks and avoiding shaking hands. But it is something that we need to look forward to, which is that the quality of governance cannot be diminished, and we cannot have pandemic governance becoming endemic governance.

I suppose the obvious comparison is post-World War II governance and the end of war time powers. I suppose we will see if there are any connections to be drawn there. You mentioned there the risks of this form of governance, and throughout the pandemic the Rule of Law crisis between Poland and Hungary and the EU has only worsened. 

For my final question, do you believe that COVID-19 has provided resources for these governments and other illiberal regimes to further their agenda, for example, through the changes to the rules for the Polish presidential election in 2020, or has the response to the pandemic of these governments actually weakened their authority? Do you think the pandemic will play any salient role in the upcoming elections in Hungary this year, and further off in Poland in 2023?

Thank you for the excellent question. I am going to start by saying that the pandemic has not caused autocratization. However, it has furthered it and deepened it. 

Essentially the pandemic provides a very convenient guise for assuming more power, and consolidating power within an executive.

Certainly, in the states that already were on a trend of Rule of Law backsliding and democratic decline the pandemic has been a way of accelerating that. What we’ve seen in these countries – not only Hungary and Poland, but also in Bulgaria, Serbia, India, Brazil and even in the USA under the Trump administration –  is that just to have control is not enough, because having control of a population is not having control of a disease. 

Where an autocratic government does fundamentally rely on popular, if not populist, support, people are look very specifically in a focused way about how well the government is dealing with the pandemic. 

While you and I can be very concerned about things like judicial independence, and the autocratic abuse of the law, people can look and see whether or not their relatives are being taken care of – whether or not the state is effectively able to control a health crisis.

So, in terms of elections, this is going to be a critical issue. This is critical in the minds of so many people; we could see that in the Trump vs. Biden election. But we can also see that in elections in general that this is a huge historic moment, and it will inevitably affect how people make their decisions in elections in the future. 

Obviously, there are going to be questions as to whether or not those elections are free and fair, but this will inevitably be a critical element. The question won’t necessarily be ‘have you protected the legal system, and the health of the legal system in the context of the rule of law?’ but ‘have you protected the health of my family? Have you protected the health of my community?’. I would guess that this is going to be a key election issue at least for the next five to ten years.

In collaboration with Karen Culver