Parliament is currently in recess but its work continues, with select committees moving to remote hearings, and the Speaker promising to move, if only temporarily, towards a ‘virtual parliament’. David Natzler, who spent almost 40 years working in the House of Commons, draws on his experience to suggest how issues relating to the remote conduct of oral questions, voting, committees, and other key matters, might be resolved before parliament returns in late April.
In my blog of 23 March, I suggested that parliament would be judged on how well it had dealt with COVID-19. Over the past fortnight parliament has passed the Coronavirus Act and Commons select committees have held several hearings (see below) in procedurally unique circumstances. Developments in other parliaments and institutions have given an indication of how Westminster might adapt in the coming months. And there have been growing calls for business – in some radically different form – to be resumed well before 21 April, when parliament is due to reassemble following its standard, if slightly extended, Easter break. The proceedings in both Houses on 23-25 March are of course available to read in Hansard. They do not seem to have been widely reported in the press, save for the observation that there were no votes.
Speaker’s letter of 27 March: Chamber proceedings
On 27 March the Speaker, Sir Lindsay Hoyle, wrote a letter to all members of the House of Commons. The letter confirmed that he would be considering several practical measures to enable the number of members present in the Commons chamber at any one time to be reduced. These measures included advance publication of the order of speaking in debate, which the Chair has hitherto not revealed, thus requiring members to attend the debate and wait until called. In the past it has been suggested that the draft list be published, as it is in many other parliaments; this already happens in the House of Lords. If this were introduced it could take some persuasion to return to the existing practice, which allows the Chair to show some flexibility in response to debate.
Oral and written questions and statements
The Speaker’s letter also envisages possible adaptations of the oral question regime, conceivably allowing for questions and supplementary questions to be posed remotely by absent members. Advance submission by MPs of their desire to be called to ask a supplementary question following a statement or urgent question is also canvassed as a possible change. And the Speaker gave a strong signal that he would expect the government to allow for answers to written questions to be given during any future extended period of adjournment, much as happened in the mid-2000s when September sittings were abandoned for several years (see Standing Order 22B and Erskine May 22.4, footnote 3). This was repeated in his letter to the Leader of the Commons on 2 April.
Public attention naturally focuses on PMQs and, perhaps to a lesser degree, questions to departmental ministers. The much discussed 31 March virtual Cabinet meeting was conducted using a commercially secured Cabinet Office version of Zoom, which the Speaker has asked – both in his 27 March letter and subsequently – to be made available to parliament. The regular government press conferences on the handling of the crisis now proceed in this way. There are some special considerations for parliament, not only the technical security and resilience of the system used, but also how to make sure that the outcome is plainly a parliamentary proceeding and covered by privilege, to enable members to speak freely and without interference. Although journalists have been able to ask questions of ministers (and government scientists) via the daily virtual press conferences, this is an imperfect substitute for parliamentary scrutiny, where government backbench and opposition voices can be heard – hence the imperative of overcoming the technical challenges and reinstating some form of parliamentary questioning.
The Speaker set out in his letter how he was using the powers given him by the Order of 24 March to enable the remote participation of MPs in formal public and private select committee proceedings, emphasising the importance of committee members being able to both hear and contribute to discussions directly. These provisions were first used by a departmental select committee on Thursday 26 March, when the Health and Social Care Committee heard expert evidence on the coronavirus (the Petitions Committee held a session the previous day with two government ministers and a Deputy Chief Medical Officer). Further remote hearings were conducted on Tuesday 31 March, by the Treasury Committee, and the Digital, Culture, Media and Sport Committee, which could be viewed live by the public. The Transport Committee is to hold a live session with the Transport Secretary on 7 April. The Clerk of the House, Dr John Benger, has expressed confidence in a letter to the Speaker that it will be possible to have up to 20 such meetings per week by the week of 20 April, which would amount to ‘the typical weekly volume of evidence sessions’.
The Speaker’s letter states that this remote participation system will be possible until 30 June in the first instance, and is not envisaged as permanent, but also recognises that the House will want to consider in due course whether to allow such practices to be incorporated into committee procedures permanently as an available option. They have in fact been quietly considered before, for example some years ago when a committee Chair was confined to her house for some months and wished to continue to chair meetings: but never activated. Lessons will no doubt be drawn from the rapidly adapted practices of the courts, including the UK Supreme Court, which handed down the first of several ‘virtual’ judgments on 25 March, and parts of the High Court, which are hearing some civil cases remotely.
A particular challenge is that the Liaison Committee, comprising the chairs of the individual committees, has not yet been formally established. Some have drawn a parallel with the rapidly-established Epidemic Response Committee in the New Zealand parliament, in terms of the potential for a senior group of members to play a coordinating role in government oversight. In principle, the Liaison Committee might do something similar: it normally has the role of periodically questioning the Prime Minister. However, wrangling over who should be the chair of the committee has so far delayed its establishment. A government motion proposing that Bernard Jenkin should chair the committee was objected to by MPs on 17 March, and the motion has now been laid again for discussion after Easter. Some sort of informal forum for committee chairs to question a minister or official can be envisaged without requiring the House’s assent, and the Speaker conveyed in his letter of 2 April his support for this idea.
Public bill committees, etc.
It has not been widely recognised that there may be more difficult issues in dealing with legislative committees, notably public bill committees in the Commons (the Lords deal with most primary legislation on the floor of the Chamber). Various pieces of Brexit-related legislation need to reach the statute book before the end of the transition period, currently set (in statute) for 31 December. When the House of Commons adjourned on 25 March, the Environment Bill had just started its public bill committee stage of detailed, clause by clause examination. The Fisheries Bill is at report stage in the Lords; it will then come to the Commons for second reading and detailed scrutiny. The Immigration and Social Security Co-Ordination (EU Withdrawal) Bill and the Trade Bill are both awaiting second reading and due to have their committee stages in the Commons thereafter, as is the Finance Bill.
It might be excessively time-consuming and laborious to deal with all of this legislation in a committee of the whole House, and the time which could be devoted to detailed scrutiny and debate would probably be reduced. The recorded votes which normally accompany such scrutiny are easier to manage in a committee of 20 or so than in the full Chamber – subject of course to any changes in Commons voting procedures (see below). But public bill committees are different to select committees, and rely on the interchange of views, frequent interventions, and ready access to the documents. Remote participation in committee scrutiny of bills will be a human and technological challenge. A public bill committee meeting makes heavy demands on those human resources which may be scarcest, notably Hansard and audio-visual staff. So it may be that bills will indeed have their committee stage on the floor of the House.
The Speaker’s letter has a brief reference to voting. So far informal dissuasion of recorded votes has been sufficient, in both Houses. But that is not an acceptable solution as the weeks pass. The Opposition – and crucially its new Leader, Keir Starmer – will want to be able to express its view on not only COVID-19 but the post-Brexit negotiations, the Finance Bill and other legislation. The issue of voting is a classic matter for the Procedure Committee, which is fortunately already engaged in an inquiry into the proxy voting pilot scheme for those on parental leave. Some other parliaments are holding plenaries in reduced numbers reflecting the party balance in that parliament: in the Dutch second chamber with as few as one or two for each group, in Ireland allowing a third of Members. In Italy and Sweden around a sixth of party members are needed, whereas in Norway it is half. With reduced numbers some can use their existing voting system, although in Denmark that is expected to involve a very long queue from the chamber, due to the need for social distancing.
There have to date been few recorded votes in parliaments operating in the new environment, one of which was in the Polish Sejm on 28 March. The European Parliament adopted a special voting system for its 26 March sitting. Ballot papers were emailed at pre-determined times to those of its widely dispersed membership who were not able or willing to come to Brussels. Members were asked to print them out, fill them in with their name and vote, sign them and return by email to a special mailbox at the parliament building in Brussels, either by scanning them in or sending a photograph. One hour was allowed for each such procedure before the ballot closed, and a further 90 minutes for verification and counting before the results were announced. The results of the three ballots held in the course of the day – 688 members voted out of a membership of 705 – suggest that all or the vast majority of MEPs seem to have managed to navigate this process. A more agile version of this interim and emergency system — which depends on absent members knowing the time at which a ballot paper will be despatched — that is quicker to complete, might well be attractive in the longer term.
As mentioned in my previous blog, adopting the New Zealand practice of voting by party bloc is one possibility, but makes difficult the kind of internal party dissent which is more commonplace in the UK. Several parliaments in other countries, such as France, have already allowed for the party leaders or whips to cast votes on behalf of their party groups. The idea of party whips or mathematically determined fractions of the membership voting on behalf of their colleagues, even with obvious safeguards, will justifiably send shivers up the spines of those in the UK who value the independence of members, suggesting an alternative system. But setting this up is not without challenge. The House will want to be certain that it is the member voting remotely and not, for example, their assistant. Remotely voting members need to enjoy equal access in whatever part of the country they are in: to be alerted to when there is a vote, and on what. The party whips and indeed their members will want to be able to communicate on which side their vote is sought, which is not always obvious. But overall the prospect of remote electronic voting for the House of Commons must be getting closer.
Resumption of parliament
The UK parliament sat from 23 to 25 March to agree the Coronavirus Bill, and then adjourned until Tuesday 21 April, subject to any recall. The Leader of the House of Lords announced on 25 March that in the month from 21 April the Lords would meet only on Tuesdays, Wednesdays and Thursdays, with the first two days devoted to government business. No such plan has to date been announced for the Commons. The dates for private members’ bills were changed by the House to reflect the loss of the 27 March sitting, but whether the House will really sit on Fridays through to the summer remains to be determined.
As it stands the House of Commons already has its agenda fixed for 21 April, with oral questions to the Secretary of State for Justice set to be followed by second reading of the Immigration and Social Security Co-Ordination (EU Withdrawal Bill. The House’s agreement would be needed to any new procedures involving remote participation or special voting arrangements and its agreement is required to agree any further adjournment or revised pattern of sitting.
How is this to happen?
The Speaker could conceivably and exceptionally allow, with general consent, a complex motion to be moved at the outset of the sitting – possibly even before Justice oral questions – by the Leader of the House on 21 April despite the formal lack of notice. There is no quorum for agreeing to a motion without division, so that if all sides were content, only a handful of members would need to be in attendance.
But it may well be that the demand for parliamentary questioning of ministers cannot be held back until 21 April. In that case Standing Order 13 provides, somewhat controversially, that only the government can request a recall. This could be used to ask the House to agree to new procedures which would immediately come into effect. Such business could even be taken in the morning of 21 April, allowing for any new procedures to come into effect at the sitting of the House that afternoon.
If the political leadership of the House, including the significant leaders from among select committee chairs, were agreed in advance on all the details of a scheme, or at least to delegate its detailed operation to the Speaker, then only a handful of members would need to be in attendance. Of course nothing can or should prevent individual Members from attending and indeed seeking to have a recorded vote, which requires 35 members voting in the lobbies to be valid. So it is a big ask to create consensus in these times, but not an impossibility.
All this would require government assent and cross-party support, and in particular the agreement of the new Leader of the Opposition. But if the government is willing to co-operate, there is at least a real prospect of virtual Commons chamber proceedings some time soon.
This is the second in a series of blogs in response to the constitutional challenges posed by the coronavirus. To see past blogs in the series, click here. To be notified of future blogs as they go live, sign up for updates in the left sidebar.
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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.