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present emergency.50 To be sure, the fact that negotiations take place
off-stage means that interest-based bargaining does not carry the
same repercussions as public politicization of the pandemic response
would. But the evidence suggests that the early pandemic response
in Canada has not, generally, been politicized.51 This is not inevita-
ble, however, as the situation in the United States makes clear.52 In
this depoliticized, more collaborative space, discussions and negotia-
tions are more likely to focus on issues of accountability—how much
authority does the executive require to respond to the pandemic?
Would certain measures overreach? How should the government’s
spending be overseen by Parliament on an ongoing basis?
In short, off-stage accountability must be considered in evaluat-
ing how the legislature holds the executive to account in a pandemic.
Of course, it is not a substitute for on-stage accountability, particularly
as time goes on. As Thomas notes, off-stage negotiations do not tend
to promote transparency or representation. He reports, for example,
that a relatively exclusive group of MPs from each party were part
of the negotiations that led to the development of the early pieces of
coronavirus legislation.53 At the same time, no MP ultimately objected
to the agreements that were struck.54 Moreover, it would be a mistake
to ignore these levers in evaluating the overall accountability dynam-
ics of the current situation, especially in light of their apparent effec-
tiveness in securing more transparent and representative forms of
oversight. It now falls to parliamentary committees to take advantage
of their mandates.
Another node of off-stage accountability can be found within
the executive itself. Civil servants in both the legal and policy spheres
provide expert advice to politicians on how legislation and govern-
ment programs should be structured.55 This includes providing legal
50. Zack Beauchamp, “Canada Succeeded on Coronavirus Where America Failed.
Why?”, Vox (4 May 2020), online: <www.vox.com/2020/5/4/21242750/coronavi-
rus-covid-19-united-states-canada-trump-trudeau>, citing Eric Merkley et al,
“A Rare Moment of Cross-Partisan Consensus: Elite and Public Response to the
COVID-19 Pandemic in Canada” Can J Political Science [forthcoming in 2020].
51. Ibid.
52. Beauchamp, supra note 50.
53. Thomas, “Parliament Under Pressure”, supra note 5. See also Malloy, supra
note 22.
54. I am grateful to Charlie Feldman for this point.
55. See generally Gillian E Metzger, “Foreword: 1930s Redux: The Administrative
State Under Siege” (2017) 131 Harv L Rev 2 at 71-72: “The administrative
state—with its bureaucracy, expert and professional personnel, and internal
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Titel
- VULNERABLE
- Untertitel
- The Law, Policy and Ethics of COVID-19
- Autoren
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Verlag
- Ottawa Press
- Datum
- 2020
- Sprache
- englisch
- Lizenz
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Abmessungen
- 15.2 x 22.8 cm
- Seiten
- 648
- Kategorien
- Coronavirus
- International