Parliament and COVID-19: the Coronavirus Bill and beyond

sir_david_natzler.smiling.cropped.3840x1920.jpgThe Coronavirus Bill introduced by the government last week will be debated by parliament in circumstances where it is harder for both Houses to meet, scrutinise and vote than at any time in recent memory. How should parliament respond to both the legislation and the crisis that prompted it? Former Clerk of the Commons David Natzler outlines the key issues facing MPs and peers as they consider how parliament should function in the coming months.

Just as the dust is settling on the first phase of the Brexit marathon, and the Constitution Unit and others are examining the role played by Parliament over the past three years, COVID-19 presents itself wholly unexpectedly as a challenge to all the nation’s institutions. Parliament was settling in for five years of single-party majority government and it looked as if, Brexit deal aside, it would be relatively smooth sailing. Now parliament faces the challenge of fulfilling its role in a COVID-19 environment.

The Coronavirus Bill

The government published its Coronavirus Bill on Thursday 19 March, having already revealed the policy proposals to which it gives effect in its Action Plan (published on 3 March) and a more detailed prospectus (published on 17 March). The bill has 87 clauses and 27 Schedules, totalling 321 pages of legislative text. The Explanatory Notes run to 73 pages, and there is a 31-page long memorandum on the implications for human rights.

Commons scrutiny

The bill is to be debated in the House of Commons on Monday 23 March for a maximum of six hours: up to four hours on second reading and two hours for committee of the whole House and remaining stages. The House decided on 18 March to disapply the EVEL Standing Orders in relation to the bill, so it will be spared the rigmarole of forming a Legislative Grand Committee.

It has been possible to table amendments since the bill was introduced. Four amendments and four new clauses were tabled on the day of its publication, and more may be expected in so-called ‘manuscript’ form on the day. They mainly address the issue of for how long the Act will be in force. The bill establishes that its provisions will apply for two years, with provisions for individual powers to be ‘sunsetted’ earlier or indeed revived if it falls due to a sunset clause. It also provides for a general debate in both Houses after one year. Both the official opposition and a cross-party group are proposing systems of six-monthly debate and renewal only if the House so decides. It is perhaps significant that the Irish parliament last week passed a similar bill and as a result of amendment decided that it should last for one year. This is an area where some change is likely; both the Scottish Government, and independent human rights organisations such as Liberty, have expressed concerns about the sunset and scrutiny provisions as currently drafted.

Lords scrutiny

The bill will then go to the House of Lords for consideration on Tuesday 24 March, without a fixed timetable, but using the practices there employed for fast-track emergency legislation. The Lords may well amend the bill, whether as a result of a majority there in favour of changes possibly opposed by the government or because ministers themselves wish to make changes, for example in response to debates in the Commons on the sunset clause, or to correct errors identified since publication. The Commons will be asked to agree any Lords amendments on Wednesday 25 March.

Amendments

In a bill of such complexity and variety produced at breakneck speed by the wonderful parliamentary drafters it would be very odd if the cold light of day did not produce some necessary minor amendments. There has been some play made of the error in the original version of paragraph 69 of the Explanatory Notes – not part of the legislative text – which consisted of the standard footer from departmental email accounts; it has now been removed. If that is the worst error, everybody involved in the Office of Parliamentary Counsel and in departmental legal offices deserves a massive virtual hug and a long holiday.

It has been said that there will be no divisions on the bill in the Commons, meaning no recorded votes. But that does not mean that there will be no dissent or questioning, and hopefully it will be accepted that constructive debate and scrutiny is as necessary in these difficult times as at any other time. Many will recall that some of the powers granted in emergency legislation at the outset of both world wars lingered for many years thereafter, including the arms export control regime: which the Scott Report on Arms to Iraq criticised in strong terms in 1996.

For example, Clause 22 allows for the period during which there can be a warranted interception of communications before authorisation by a Judicial Commissioner to be extended from 3 days to 12 days, if the Investigatory Powers Commissioner decides that it is necessary. This provision is said to be justified on the grounds that a Judicial Commissioner may not be found to consider the matter in the time available. All but one of the 15 Commissioners, who are former holders of high judicial office, are over 70, a group at evident risk. But Clause 21 allows for the appointment of temporary Commissioners on a fast-track system. This is the sort of conundrum where it may be expected that there will be genuinely useful debate.

Constraints

The scrutiny of such a bill would be difficult at the best of times. For example both Houses normally benefit from the reports of the expert Lords committees on the Constitution and on Delegated Powers and Regulatory Reform, and from the Joint Committee on Human Rights. With such fast-track legislation that is not practicable, although some members of those committees will no doubt take part in the debates, and parliament will as ever be able to rely on the excellent briefings on different parts of the bill produced and published by the House of Commons Library

Beyond the bill

It is probable that the bill will go through largely unamended and become law. But it does not end there. Parliament will continue to be involved over the months ahead. As the Leader of the House, Jacob Rees-Mogg, said in Business Questions on 19 March, ‘we need to ensure that the legislature is operating efficiently, even if it has to operate differently, to ensure that we carry out our proper role.’ Under the terms of the bill, there are to be reports on all and each of its provisions every eight weeks. Select committees, under whatever constraints they operate, can be expected to take a lively interest, and will no doubt seek further evidence as required from departments and those with specialist knowledge, without wanting to interfere with those frantically doing their jobs. Questions as well as debate will continue to provide democratic oversight of what is actually happening. And while ministers have tended to make announcements direct to the public in recent days, once parliament resumes in some form after an extended Easter break it will want to ensure that, through statements and urgent questions, the executive is indeed held to account.

Parliament’s internal organisation and COVID-19

Parliament is itself intimately affected by COVID-19. For example, in light of the advice against people congregating in large numbers in enclosed spaces the last thing anyone wants is to be in a division lobby with several hundred other MPs. Extensive pairing of members, which is a matter for the parties, can only go so far in solving that, and there have of course been problems with pairing in the recent past. In correspondence with the Speaker, the recently elected chair of the Procedure Committee, Karen Bradley, raised the issue of pairing and also of the possible extension of proxy voting. The latter would require the agreement of the House to amend the proxy voting regime introduced on an experimental basis a year ago, and now being subjected to a review. An extension of ‘nodding through’ absent members raises some difficulties, as hitherto that has required the presence of the Members within the precincts of the Palace of Westminster. It also lacks transparency. But it is in any event likely that there will be proposals to enable members unable to attend because of COVID-19 to record a vote and engage in other parliamentary activity, with the aid of modern technology.

There has already apparently been an informal arrangement entered into to ensure that the Commons does not become unhealthily crowded, for example at Prime Minister’s Questions or for key ministerial statements. However I suspect that Public Health England would prefer it if even greater distance could be kept between Members. Sittings in the parallel chamber in Westminster Hall have been suspended, in order to free up key parliamentary staff who may be in short supply.

Changes in practice and procedure: Commons

It is instructive to read not only the exchange of letters between the Chair of the Procedure Committee and the Speaker on 11 and 13 March referred to above, but the memorandum produced for the committee by the Clerk of the House on 16 March, which sets out a number of propositions and possibilities as the effects of the pandemic take hold. He warns that staff absences might require changes in some practices in the Table Office and elsewhere which would inevitably constrain what MPs could do. And it sets out several imaginative ways in which select committees could operate in a more ‘virtual’ environment, including having a physical quorum of one member with other members participating remotely, a power to report a committee’s opinion without it having to meet, and greater use of video-conferencing, which is easier said than done. Video conferencing is not, however, a matter merely of equipment, but of having key skilled staff available, which may prove a challenge. And committees have apparently been warned that there will not be unlimited capacity for evidence sessions

The memorandum refers to the practice in some Commonwealth countries of the party whips in effect casting a mass or ‘party card’ proxy vote for all their party colleagues. This practice is the rule rather than the exception in the New Zealand parliament. It is also used on occasions in the French Senate and elsewhere in Europe. If this were introduced at Westminster many would be fearful that it might be hard to revert to current voting practices, suggesting at the very least that safeguards (such as another form of ‘sunsetting’) would need to be built in.

Changes in practice and procedure: Lords

As for the Lords, it has a track record of adapting to circumstances as needed; and until the 19th century operated a system of proxy voting – Standing Order 60 still provides that the ‘ancient practice of calling for proxies shall not be revived except upon the suspension of this Standing Order; and not less than two days’ notice shall be given of any Motion for such suspension’. Thanks to the House’s age profile – the average age is 70 – the impact of the pandemic is likely to be of particular concern. On 19 March the 82-year-old Lord Speaker, Lord Fowler, announced to the House that he would from then on be ‘working from home’. Of the 23 deputies who may preside in his absence, only four are under 70, so on 23 March the House will be asked to agree that other members may preside until July. At the same time the House will be asked to agree to the suspension of by-elections for hereditary peers until September; that will have an immediate impact, as the Earl of Selborne, who turns 80 on 24 March, is to retire on 26 March. The number of future committee meetings listed in the order paper published on 14 March was 27; by 20 March the number was down to 8; whether a means will be found for committees to meet by video link remains to be seen.

Changes to post-legislative scrutiny

The Commons Clerk’s memorandum refers to the importance of supporting the work of the Joint Committee on Statutory Instruments, an organ of parliament which does not get much attention. Its role is to examine delegated legislation with a view to advising if ministers have made an unexpected or improper use of powers given under an Act. The Lords have a permanent Secondary Legislation Scrutiny Committee. Somehow parliament will have to stay abreast of the use of delegated powers under the Coronavirus Act.

So parliament has  existing mechanisms – notably its select committees and the parliamentary question regime –  and can create new ones to be able to fulfil its function of holding the executive to account in these hard times, as the Commons did in 2018 to examine the flood of delegated legislation produced under the European Union (Withdrawal) Act.

Public expectations

At the end of the day people will want to be assured that: (a) the powers granted under the Coronavirus Act have been and are being properly and proportionately used; (b) any proposal to extend a power beyond its natural life has a proper rationale; and (c) powers which were not given, but are required, are being sought. They also want to be assured that their questions are being answered and issues are being aired not just on social media but in the principal democratic forum, which is the House of Commons. The Petitions Committee is holding an innovative hearing on 25 March to air the tens of thousands of questions submitted, as a way of responding to the 1.8 million people who have signed petitions on COVID-19.

When parliament comes to debate the Coronavirus Act in March 2021 it will also need to examine its own performance over the previous 12 months. There is room here for bodies such as the Constitution Unit and the Hansard Society to help.

Conclusion

These are clearly testing times for parliament’s constitutional role, as they are for the other elements of the constitution, from the monarchy downwards. It is early days, but unexpected things can be done quickly and effectively. Let us be thankful for the flexibility inherent in our constitutional arrangements that makes that possible.

The author and editor both want to thank David Beamish, former Clerk of the Parliaments (i.e. chief official of the House of Lords), for his assistance with preparing this post, and the paragraphs on the Lords in particular.

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About the author

Sir David Natzler is a former Clerk of the House of Commons (i.e. the chamber’s chief official) and co-editor of the 25th edition of Erskine May: Parliamentary Practice. He is a Senior Research Associate at the Constitution Unit.