Accountable Lawmaking: Delegated Legislation & Parliamentary Oversight during the Pandemic

In responding to the COVID-19 pandemic, democratic states around the world have massively expanded executive powers. Much of this transfer of power has occurred by the delegation of legislative power from parliament to the executive. As will be explained, delegated legislation is a process of executive law-making whereby government ministers, departments, agencies or other officers are empowered to make regulations with the force of law. Although these powers can arguably be justified in some circumstances because of the need for swift and decisive action, there is room for reaonable debate about the scope, duration and conditions of such executive powers. Concerningly, scholars have demonstrated that the checks and balances that ordinarily constrain constitutional governance have come, during the pandemic, to tolerate many unbounded executive powers.

While some democracies have struggled to provide even a modicum of parliamentary oversight of executive actions during the pandemic, other countries have managed to provide space for the examination of executive decision-making. This policy brief analyses trends in the working and monitoring of delegated legislation in Australia, New Zealand, and the United Kingdom during the pandemic. It focuses on how the pandemic has affected parliamentary oversight of executive actions and assesses how institutional responses have conformed to democratic standards. The identification of points of difference within similar contexts appears most likely to reveal novel but transposable inter-jurisdictional learning.