The Legislative Measures Model of Public Health Emergency Powers in Global Perspective

Abstract This chapter surveys the deployment of constitutional and statutory emergency powers within the full set of countries in The Oxford Compendium of National Legal Responses to Covid-19. In section I, the chapter addresses the theoretical basics in the wide- ranging discussions about emergency powers, and then considers the structure of emergency powers employed across the dataset. Recognizing the need for urgent executive action to respond to public health emergencies, the chapter examines the widespread preference for what has been called the ‘legislative measures model’ over the ‘constitutional dictatorship’ model of emergency powers, and details its features such as the role of the emergency declaration, parliamentary control and renewal, and parliamentary supervision of executive power. In section II, it considers the question of executive aggrandizement, focusing on both the narratives in country reports and also the high level heuristics of elections, parliamentary closures, parliamentary opposition attitudes to pandemic responsive legislation, and tendencies to close courts and suspend bills of rights. For the most part, it finds a distinct trend of constitutional resilience. Yet it also finds that there was a distinct vulnerability to constitutional and democratic erosion in countries considered hybrid democracies or electoral autocracies. This is one aspect of the theme of continuity of constitutional tendencies before, during, and after the Covid-19 pandemic. On the whole, the chapter concludes that the legislative measures model that kept institutions of accountability open, with adaptations, was vindicated over its ‘constitutional dictatorship’ rival.