The pandemic has created the tragic conditions for several experiments on the question of how societies organise.
The obvious example is the domain of public health; comparing how different states tailor their lockdown regimes. Yet comparisons can also be run in the differing responses we see from other institutions.
A curious instance is the question of whether parliaments may sit remotely, recently discussed on this blog. This curiosity arises not because of the outcome (‘this country allows remote sittings, that country doesn’t), but because of what these responses tell us about those institutions and their constitutional frameworks. Moreover, these legal experiments better inform our view of the Irish system.
Two contrasting approaches, Estonia and Latvia, may therefore be of some interest in this regard. Both have allowed for remote sittings, but in ways that present some awkward conclusions, perhaps, for the Irish observer.
It is unsurprising that Estonia, the land of Skype, has allowed for remote sittings: What is surprising is the way in which this was done.
Estonia’s Constitution is silent as to where parliament sits. Instead, sittings are regulated by The Riigikogu [Parliament] Rules of Procedure and Internal Rules Act, § 57 of which provides:
‘Sittings of the Riigikogu are held in Tallinn in the session hall of the Toompea Castle unless the President of the Riigikogu, for weighty reasons, designates another place for the holding of the sitting.’
The Act is less specific on committees, mandating that their minutes indicate a location.
Within this statutory context, the following occurred:
- On March 16, the Riigikogu’s Constitutional Committee decided to allow parliamentary committees to sit remotely. This Committee has oversight over the constitutional aspect of several domains, one of which is the initiation of bills regulating the Riigikogu’s activities;
- The Committee then began to investigate whether the Act’s current language permitted remote sittings. It formed an initial view and then consulted with the ‘factions’ (parliamentary parties) on whether an amendment was required. The Committee’s Chairman emphasised that an amendment must be made by consensus;
- On April 13, the Committee concluded that the Act did not allow for remote sittings;
- An amendment was duly drafted, which passed on 20 May. § 57 now provides that sittings may be conducted by electronic means.
The first surprise is that the Committee was not convinced that the reference to ‘another place’ in the Act could involve the digital realm. More surprising however, is the Committee’s independence; forming an initial view based on its own statutory interpretation, it then consulted the factions in order to affirm/contest this view. 3 of the 9 Committee members are lawyers, with a fourth holding a law degree.
Latvia’s Constitution, like Ireland’s, does mention parliamentary sittings:
’15. The Saeima [Parliament] shall hold its sittings in Rīga, and only in extraordinary circumstances may it convene elsewhere.’
The Constitution cannot be amended easily, requiring a two third parliamentary majority. Strikingly however, another, innovative approach was adopted:
- On March 12, the Government declared a State of Emergency;
- On March 23, The Latvian President declared that legal formalism must not impede state functioning during this emergency. He convened, in an historical first, a meeting of the heads of all constitutional bodies: the President, legislature, executive, and judiciary;
- These constitutional chiefs all agreed that Article 15 allowed the Saeima to convene remotely. This meant, to quote one Latvian lawyer, that the reference to ‘elsewhere’ in Article 15 included a digital environment;
- On April 2, the Saeima sat remotely.
The context in which this interpretation occurred is most interesting: to the Irish observer, it is as if the Council of State had suddenly transformed itself into a constitutional shock-brigade. There is no provision in Latvian law which allows for such meetings between the constitutional bodies but, undeniably, it allowed for quick agreement. I have since asked a Latvian lawyer, Aleksejs Dimitrovs, on the reaction: he indicated that nobody has really questioned the President’s authority to organise this meeting, perhaps because the President, Egils Levitis, is a respected lawyer (the former Latvian judge in the ECtHR and CJEU) and that therefore even the judiciary wasn’t hesitant to engage with his plan.
In Estonia, we see a parliamentary committee that is quite capable of legal interpretation; one can point to the fact that the Constitutional Committee was interpreting a statute only, but this Committee has engaged in constitutional interpretation: in 2017 the Committee disagreed with the Chancellor of Justice (an office overseeing compliance with the Estonian Constitution) over whether certain tax measures were unconstitutional: this dispute was a rather nuanced, involving the relevance of Supreme Court precedents in the area.
This is a sign of institutional health: those who make law ought to be able to form their own conclusions on what that law is and not endlessly and externally defer.
The Irish approach stands in sharp relief: first legal advice was sought by the Business Committee; on foot of this advice (which remains the contested view of one lawyer), the Ceann Comhairle wrote to TDs flatly stating that remote sittings were not possible. Alternative legal advice obtained by a Deputy was disregarded. Whatever about the result, this ‘process’ is hardly preferable to Estonia’s, where a parliamentary committee met, engaged itself on the issue of interpretation and then consulted with, rather than dictated to, the rest of parliament.
Looking to the Latvian approach, this was enviable in how state bodies were able to collaborate. It went beyond a simplistic view of constitutional actors acting solely as ‘checks and balances’, and instead, looked to such bodies functioning as cooperative agents. Some Irish lawyers I’ve spoken with raised the issue of whether such meetings strain the separation of powers, and risk the judiciary deciding questions of interpretation before a case is properly before the courts. This concern may apply to the normal situation. But the Latvian approach can’t be compared to times of normalcy, only those of emergency: in the latter, it is typically the executive branch making decisions to the general exclusion of the other powers. Whereas in this instance, we actually have all branches capable of participating in such decisions i.e. there was more collaboration than typically seen in an emergency.
Moreover, the improvised procedure was more dynamic than a court awaiting a challenge by an individual, risk-taking, litigant who, importantly, may never appear. This last point is worth considering in the Irish context as it is not likely that there would ever have been any involvement by the Irish courts on the issue of remote sittings. This is so for two reasons:
Suppose the Dáil had decided that it could sit remotely, a simple amendment to the standing orders would have been required. This would rule out an Article 26 reference. Someone would then have had to issue proceedings in order to involve the judiciary. While not completely clear how likely a challenge would have been, I think unless there are unknown bands of would-be litigants carrying deeply held sentiments toward physical sittings of the Dáil, it’s safe to assume that such a challenge would have been unlikely. If we accept this, then we have to accept that the Latvian approach, which included the judicial arm from the outset, arguably serves the Separation of Powers better by giving a voice for the judiciary concretely and immediately, since this is a voice which would never have been heard in the absence of a Court decision on such a dry, procedural point.
Any comparative analysis must always be conscious of stretching its recommendations too far: the concrete situations of Estonia and Latvia come with bespoke baggage, and this piece is not a call for the adoption of identical procedures. Instead, this piece has sought to advance the case that other states often ‘do constitutionalism’ in more interesting, more dynamic, and more democratic ways, casting, in this instance, the Irish approach in a harsh light.
Jack Larkin is postgraduate student studying history at the University of Oxford and is a law graduate of Trinity College Dublin and the LSE.