Virtual parliaments and the need for deliberation especially in times of pandemic

On Tuesday, 7 April the Dutch Eerste Kamer approved an urgent bill digital decision-making for local authorities, de spoedwet digitale besluitvorming. The law ensures that municipal councils, provincial states, water boards as well as island councils will be able to take decisions digitally for as long as they cannot meet during the Corona crisis (it now applies until September, with a possible extension). The law does not, however, provide for possibility of digital decision-making for the national parliament in the Netherlands, i.e. the Tweede Kamer and Eerste Kamer. Both chambers still meet in person, though plenary sessions have been scratched from the agenda save for the most urgent ones relating to Covid-19.

The question of whether parliament should, and legally can, meet and decide digitally has been on the agenda of many parliaments in Europe and beyond in these last weeks. The in modern times unprecedented pandemic has put many representative assemblies before the same question: how to ensure a continued democratic process, and in particular sufficient democratic control over the emergency measures introduced in response to Covid-19, while maintaining physical distance and/or accommodating possible members in quarantine. As a consequence, a variety of measures have been introduced in different parliaments such as¹: reducing the number of parliamentarians present in a debate to only those giving a speech as well as lowering the quorum like in Germany, or allowing for vote by proxy like in France, whereby a member of a political group may vote by proxy for their entire group. But few have so far taken their parliamentary work entirely online, even though the European Parliament did, for the first time in its history, allow for remote voting via email last month.

The most obvious advantage of digital parliamentary work is that it would allow for all members of parliament, no matter where they are and whether they are in quarantine, to take decisions without exposing themselves and/or others to the virus. However, digital decision-making is not necessarily foreseen in many Constitutions and parliamentary Rules of Procedures for the plenary. While some committee work in different countries has already been moved online, some parliaments are reluctant to do so for the whole chamber, not least because there exist constitutionality concerns over such a move.

The Wissenschaftlicher Dienst of the German Bundestag, for example, comes in its analysis to the conclusion that a virtual plenary session in the German Bundestag would necessitate a prior constitutional amendment according to the procedure of art. 79(2) German Basic Law. While there is no direct prohibition of having a virtual parliament, the wording of both the Basic Law and the Rules of the Procedures seem to imply the physical presence of members of parliament, in particular when it comes to the casting of a vote.

At European level, art. 6(1) of the Act concerning the election of the Members of the European Parliament by direct universal suffrage (Direct Elections Act 1976) states that “Members of the European Parliament shall vote on an individual and personal basis.” Under its Rule of Procedure, Parliament votes by a show of hands, though the President may decide to require the use of the electronic voting system (RoP 187). In light of this, as also the Wissenschaftlicher Dienst of the Bundestag points out, it is questionable whether the procedure of remote voting via email as was done in the EP on 26 March was compatible with either the Direct Elections Act 1976 or its own RoP.

Similarly, also the French Constitution seems to preclude any virtual decision-making in parliament. Art. 27 of the French Constitution thus states that the parliamentary members’ “right to vote shall be exercised in person”, with only proxy voting being expressly stated as a possible exception to this rule.

As for the United Kingdom, the National Assembly for Wales has held two virtual plenary sessions by video-conferencing in April, with Westminster also being in the process of moving the House of Commons online. While the Standing Orders of the House of Commons equally does not provide for a virtual parliament, it is decidedly less difficult for the UK parliament to move to virtual plenary sessions and remote voting (which so far has been done by MPs by queuing in the lobby to cast their votes) as, in the absence of a written constitutional documents, no cumbersome constitutional amendment process is needed but merely the consent of the House of Commons itself.

The reason for the lack of a clause allowing for virtual decision-making in Constitutions seems to be relatively obvious: during the time of adoption of most Constitutions the technology for a virtual parliament simply did not exist. But there is perhaps also a second, more normative reason behind it. Parliaments are deliberative, legislative and scrutinizing assemblies all in one. Their role in a political system is not only to take binding decisions in the form of laws, they are also responsible for holding the government to account for their actions and meant to meet as a public forum for debates on salient issues. By providing a different standpoint than government parties in particular opposition parties are thereby supposed to demonstrate a political alternative to the government’s decisions and to provide voters with a political alternative for the next elections.

Any move towards a virtual parliament must, therefore, allow for the same kind of public deliberation and contestation, in particular in a time in which governments all over the world are (rightly so) curtailing their citizens’ rights in an unprecedented manner in an attempt to stop the spreading of the virus. This means that moving parliaments online cannot simply mean virtual decision-making in the sense of remote voting. It must, in fact, also mean virtual plenary debates – for example via video-conferencing as in Wales –, which in turn must be made available to the public through a streaming service, in the same manner as offline plenary sessions. If this is – also technologically – possible, little is to be said against moving parliaments online through even a constitutional amendment as it would indeed ensure that all parliamentarians, and not just a subset of them, can continue to take part in parliamentary debates to scrutinize the government and to vote.

The decisions by governments all over the world to introduce emergency measures in response to Covid-19 as such might have been without alternative, but their form and degree of interference into the public life is not. This is why it is all the more important to maintain parliamentary control and public debate not even in times of pandemic but especially in times of pandemic. Whether this is done through lowering the quorum in parliament, through voting by proxy or through moving parliament online, any change in procedure to safeguard parliament itself must be careful to not be more harmful than useful to a parliamentary democracy.

Hoai-Thu Nguyen is als Universitair docent publiekrecht verbonden aan de Universiteit Maastricht.

[1] For a broad overview of different measures see here: https://www.ipu.org/parliaments-in-time-pandemic