18 January, 2024 | John Erik Fossum and Christopher Lord

Evaluating democratic decision-making in emergency

Emergencies make it hard to deliver democratic politics to normal standards: to hold elections in normal ways; to pass laws by standard procedures rather than decree; to gather representatives together in parliaments to scrutinise and debate responses to emergencies; to maintain full rights of free speech and assembly at the core of democratic politics. Since executives are often the only authorities that remain fully functional, emergencies are often prone to executive domination.

Yet crises are likely to be recurring features of our world of fragile, interdependent systems that displace problems with and between themselves. So, democracies cannot avoid a need to define what standards and procedures should govern emergencies. They will need to anticipate possible future emergencies and not just draw lessons from those experienced. In our recent paper A Democratic Audit for Europe in Times of Emergency we outline an approach to answer these questions.

Recent literature has turned away from emergency powers as a state of exception outside the normal politics and procedures of the democratic constitutional state. Rather, it asks how the powers and politics of emergency can be embedded in democratic institutions and constitutional procedures: how they can be constitutionally regulated and constrained through a productive relationship between politics and law; how they can be democratically defined and controlled.

It is an ideal of democracy that citizens should be able to use their political systems to accord one another rights and obligations, and control their own laws, as equals. What would it take for citizens to control as equals those rights and laws that apply in emergencies? Or for any coercion needed to deal with emergencies to count as a form of self-coercion by democratic citizens who control their own laws? What, in other words, distinguishes emergency powers that are justified by democratic principles from those that are arbitrary, abusive or dominating? What are the non-democratic and dominating variants of emergency politics that need to be avoided?

One danger is “emergency technocracy”, perhaps benign, but still a lapse into a false belief in scientific solutions independent of values and rights that are only decidable by citizens or elected representatives as equals. Another danger is more abusive: emergency powers can be unnecessary or disproportionate. They may not be fully “returned” by those who (ab)use them. They may be used to consolidate the powers of the powerful or to curtail freedoms and preconditions for democracy such as impartiality of the media or an independent judiciary that ensures all government is within a rule of law.

Then there is the further difficulty that we no longer live in a world of single democracies. How democracies respond to modern emergencies is no longer just their own affair. It cannot be enough for closely interconnected democracies to ensure their own responses to emergencies develop within a framework of constitutionality, democracy and rule of law. Those democracies will also need means of solving collective action problems between themselves.

So, citizens will need to author and control as equals the standards and institutions by which emergencies are governed; and they will need to do that within and beyond the democratic state. That seems a tall order. Yet, our paper argues that we can develop the means of auditing emergency powers against democratic standards; and methods of assessing how well responses to emergencies observe democratic standards is the first step needed if publics are to debate and shape how their political systems should make difficult decisions in crises.

Especially promising is the method of Democratic Auditing proposed by the political philosopher, David Beetham and his collaborators[i]. Democratic Auditing was conceived as a help to citizens in reflecting and deciding on their own democracies: on what they value in them; on how they should be designed or changed; on their strengths and weaknesses; and on how the defining standards of democracy – public control with political equality – should be realised through further standards of representation, accountability, justification, rule of law, rights and debate in a public sphere.

A multi-level democratic audit for crisis times

Beetham’s framework has not been adapted to the context of emergency politics. There are however criteria that have been formulated by the Council of Europe[ii][iii] that help us to adapt Beetham’s framework to the context of emergency politics. Further, since our objective is to develop a Democratic Auditing framework for emergency politics that includes the European Union (EU), a large-scale experiment in democratic governance, we need to take into consideration the distinctive traits of the EU.

We propose a double adaptation of Democratic Auditing: first, to problems of emergency; second to the European Union’s own contribution to a form of multi-level emergency governance that emerged in response to Covid-19. The latter, we argue in a previous paper[iv] was a system in which member states did the coercion needed to deal with the immediate exigencies of crisis while the Union did the coordination needed to prevent negative externalities and provide positive externalities without which single member state democracies would struggle to manage emergencies on their own.

To show how Democratic Auditing might be used to evaluate democratic standards under conditions of emergency, we use the example of Covid-19. We propose indicators of how responses to Covid-19 – within the system of multi-level emergency governance that developed during the pandemic – met input, output and throughput standards of democratic legitimacy.

We then highlight distinct characteristics of the EU that need to be a part of any evaluation. First its ambiguous nature as neither a state nor an international organization. Second, the distinct nature of the multilevel European executive. We finish by further adapting the input, output and throughput indicators to different polity configurations: intergovernmental union and federal union. Whether the one or the other configuration is the better way of responding to emergencies is where we expect the arguments and choices of the future.

[i] Beetham, D., Cavalho, E., Landman, T and Weir, S. (2008) Assessing the Quality of Democracy. A Practical Guide, Stockholm: International Idea.

[ii] Council of Europe (2020a) Respect for Democracy, Human Rights and Rule of Law During states of Emergency, Strasbourg: Council of Europe, June.

[iii] Council of Europe (2020b) Interim Report on the Measures Taken in the EU Member States as a Result of the COVID-19 Crisis and their Impact on Democracy, Rule of Law and Human Rights, Strasbourg: Council of Europe.

[iv] Lord, C., Fossum, J.E. and Väisänen, A. (2023) The institutional consequences of emergency powers at the national and European levels. REGROUP Research Paper no. 2.