Parliamentary scrutiny is essential to checking and legitimising government decisions. But the coronavirus crisis, during which government has been granted unprecedented powers, creates obvious challenges for parliament. Ruth Fox and Meg Russell argue that parliamentary change during the crisis must follow three core principles: first, parliament should go virtual insofar as possible; second, it should adapt its procedures accordingly, prioritising the most critical business; third, decisions about these changes should be open and consultative — to avoid the risk of a government power grab — should be strictly time-limited, and be kept under regular review.
Parliament has an essential role as the guardian of our democracy. But the coronavirus pandemic poses a huge and unprecedented challenge: how can parliamentarians conduct their core constitutional duties of holding the government to account, assenting to finance, passing legislation, and representing their constituents, when we are all required to adopt rigorous social distancing and, wherever possible, work from home?
At a time when the government has been granted emergency powers of a kind unparalleled in peacetime, and ministers are taking rapid decisions that could shape our economy and society for a generation, democratic oversight is vital. Adversarial party politics take a back seat in a time of national crisis, but parliament’s collective responsibility to hold the executive to account remains. Hence the many calls – from both within and without parliament – for a ‘virtual’ legislature to ensure adequate scrutiny of the government’s decisions, and to maintain other essential time-sensitive work, while complying with public health requirements.
As yet, however, there has been little detailed debate about how a ‘virtual parliament’ should operate. Parliament cannot work as normal, so what broad issues must it address in deciding how to work differently?
This post identifies and argues for three core principles:
- In the interests of safety, and to set a national example, parliament should operate as far as possible virtually, rather than accommodating continued physical presence at Westminster.
- Parliament should not pursue ‘business as usual’ but should make more radical changes, identifying and prioritising essential business.
- Parliament’s crisis arrangements should be based on wide and transparent consultation with members to maximise support. ‘Sunsetting’ should be used to make clear that they are temporary and create no automatic precedent for the post-crisis era.
In the UK, the government already has much greater control of the way parliament – particularly the House of Commons – operates than in many other countries. Any crisis arrangements must ensure fair representation for all members and parties; and the crisis and parliament’s response to it should not become a pretext to shift power further towards the executive and party managers.
The decisions that parliament must make in this crisis are unavoidably difficult. But if it demonstrates openness to change, creativity, and willingness to learn and adapt, it will enhance its reputation.
1. Should parliament operate in ‘hybrid’ or entirely ‘virtual’ form?
On 6 April the House of Commons Commission confirmed plans to develop a ‘virtual’ House of Commons for MPs’ return from Easter recess on 21 April. This would, through videoconference technology, enable MPs to participate remotely in certain parliamentary proceedings, augmenting the remote-working progress already made by select committees. On 7 April the Lord Speaker indicated that similar preparations were underway in the Lords.
But how much of parliament’s upcoming business should be conducted virtually, and how much, if any, should still take place physically at Westminster?
There could be symbolic benefit in parliament’s continued functioning at Westminster. But setting an example matters more – in terms of both society’s behaviour and parliament’s reputation.
The general government guidance, which applies to everybody, is to travel to work ‘only where you cannot work from home’. The travel point is especially pertinent for MPs, many of whom have constituency homes hundreds of miles from Westminster. Similarly on the basis of the government guidance, some members – particularly in the Lords – should be self-isolating due to their age and health. The Lord Speaker showed leadership at an early stage by announcing his intention to work from home.
Currently, the Commons authorities appear to be planning not for a fully virtual parliament but for a ‘hybrid’ one – that is, where limited numbers of members (including the Speaker and ministers) come to Westminster as normal to take part in proceedings, in a way that respects social distancing, with others taking part remotely via video conference.
Whatever the model, some staff presence will be required at Westminster to operate the technology. But the risk to public health implied by members travelling to London, coupled with the need for more staff on site, weighs heavily in favour of all members avoiding the parliamentary estate. Indeed a joint statement to peers by the Lords Business Managers on 9 April accepted that logic for their chamber, arguing that ‘At this difficult time we as Parliamentarians need to play our part and show leadership to the country’.
Critics of a virtual-only parliament point to the difficulties of having hundreds of members on video conferences. But, outside key set-piece occasions, chamber attendance rarely involves more than 100 MPs or peers. The Commons Speaker has already suggested the use of speakers’ lists (already used in the Lords), to help manage participation.
Another challenge is the broadcasting of proceedings. But ultimately what matters is accountability, and protecting health. If live broadcast is temporarily compromised, that may be a necessary price to pay – and committees have already experimented with delayed broadcasts and video clips.
2. Should parliament focus only on the most critical coronavirus-related business?
In the current crisis, parliament must balance the risks of allowing non-coronavirus-related government action to go inadequately scrutinised against those of expending resources on non-essential activity. There are significant resource constraints, on both members and staff: trade-offs will be unavoidable. Parliamentarians must also consider the extraordinary pressures on ministers and the civil service.
Some legislatures – including those in France, Germany, Norway and Switzerland – have already adopted an explicitly urgent-only business agenda for the coming weeks. Ultimately at Westminster parliamentarians must decide their priorities, but a similar approach seems appropriate.
What business, then, should be considered critical? The Commons Commission’s 6 April statement also gave some pointers, highlighting departmental questions, Prime Minister’s Questions, Urgent Questions (UQs) and ministerial statements. But there are other types of business to consider. Meanwhile (as further discussed below) the House of Lords has already put some forms of business on hold until after the Whitsun recess in late May.
Constructive scrutiny of ministers’ wide-ranging day-to-day decisions is essential; it can support better decision-making and help legitimate those which are most difficult. Scrutiny currently occurs largely through journalists’ questions at the daily Downing Street press conference. Parliamentary involvement adds much more: democratic accountability, opposition and backbench voices, and the relaying of constituents’ experiences. Parliamentarians’ continued support is essential to maintaining trust and confidence in the government’s pandemic strategy.
Under the normal cycle of Commons departmental questions, MPs will have no guaranteed opportunity to question the Health team until 28 April, and the Treasury team until 12 May. In the current circumstances, this is inadequate. In the Lords, where daily questions are to the whole government frontbench, there is greater flexibility.
At present, Urgent Questions (UQs) are the best way for MPs to question ministers on pressing issues. But rather than allowing as much as 45 minutes for each urgent question (as normally), 30–60 minutes each sitting day could be guaranteed for short exchanges on 3–4 questions. This would not require a Standing Order change, as the timing and choice of UQs is at the Speaker’s discretion. UQs are requested and granted at short notice, but considering other pressures on government, notice could perhaps be given a day in advance.
Other ministerial questions
Beyond UQs (or PNQs in the Lords), the usual schedule of ministerial questions should be retained, as the full range of Whitehall activity needs to be scrutinised. No government department is likely to be untouched by the coronavirus crisis. At present, each Commons departmental questions session is dedicated largely to questions tabled in advance, with topical questions permitted only in the last 15 minutes. Given the fast-moving nature of events, the Commons might wish to extend the time for topical questions without notice.
Questions to the Prime Minister
Prime Minister’s Questions (PMQs) are a well-attended ‘set piece’ of the parliamentary week. They are partly political theatre, suited to the intimacy of the Commons chamber. But they rarely allow effective scrutiny, not least because MPs cannot ask follow-up questions.
PMQs via video conference will be a very different beast. For a short experimental period, MPs could therefore trial an alternative format, providing for follow-up questions.
An alternative option would be for the Commons Liaison Committee to undertake fortnightly questioning of the Prime Minister in the PMQs slot. This would allow more in-depth questioning, perhaps allowing the Prime Minister to appear alongside other ministers or expert advisers. However it would disadvantage MPs who do not sit on the Liaison Committee, including opposition party leaders.
Whatever is decided, the Prime Minister – or whoever deputises for him during his recuperation – must commit to appear before the Liaison Committee soon after it is established, and regularly thereafter. Current circumstances warrant more regular appearances than the normal three per year.
A coronavirus select committee?
The New Zealand parliament has responded to the pandemic by establishing a new Epidemic Response Committee, made up of senior figures, to oversee the government’s work. Westminster could do something similar.
In the short term, adaptation of existing Commons scrutiny mechanisms – including by the Liaison Committee and departmental select committees – may be adequate, but the idea of a dedicated body should be kept under review. The House of Lords can set up temporary special inquiry committees; it has not yet chosen these for 2020–21, so could take up this idea. Establishment of a Lords committee would not require government support, unlike in the Commons.
Even with much business suspended, the government must secure some primary legislation in the coming months. An immediate priority is the Finance Bill, which must have its second reading within 30 sitting days of the Budget resolutions (17 March). The other current priority is Brexit-related legislation covering a host of policy areas – which relates to the politically-contentious question of whether the transition period will be extended.
Whatever arrangements are made for parliamentary scrutiny of bills, a principle of fair representation for all members and parties must be respected (the related question of voting is discussed below). In the Commons, the committee stage of bills is usually taken in a public bill committee (PBC). Several such committees can operate in parallel, and usually take oral evidence. In the Lords, no more than two bills’ committee stages can be taken simultaneously, and oral evidence is not taken. Given the potential strain on resources, the Commons might similarly limiting the number of simultaneous PBCs to two.
Several dozen Statutory Instruments (SIs) subject to the affirmative procedure, including coronavirus-related regulations, are awaiting debate and approval by both Houses before they can come into or remain in force. More will likely be laid in future weeks. In the Commons, such SIs are almost always referred to a delegated legislation committee (DLC) consisting of up to 17 members and lasting up to 90 minutes, requiring a clerk, Hansard reporter and broadcasting staff.
In the circumstances, DLCs could be temporarily replaced by a single Grand Committee on Delegated Legislation; the need for the whole House to subsequently approve affirmative SIs would still be retained. This would reduce demand on resources, be more efficient and effective than referring more SIs for full debate in the chamber, and ensure that MPs could focus their scrutiny on the small but critical issues at the heart of an SI.
Opposition day debates
In the House of Commons, 20 Opposition days are guaranteed per session, each generating a debate on motion(s) tabled by an opposition party. But ‘debate’ is a challenging concept under either a fully virtual or hybrid solution. In the current climate of constructive engagement rather than point-scoring, opposition parties may not consider the traditional debate-and-division model particularly appropriate. But to deny opposition time altogether would be a retrograde step. An attractive alternative might be shorter and sharper questioning sessions on topics selected by opposition parties, perhaps on a weekly basis.
Voting in divisions
Voting presents a particular challenge, as highlighted by the former Clerk of the Commons, Sir David Natzler. It has so far been dealt with by avoiding divisions, which is not sustainable in the longer-term. Some have suggested that Westminster is at a disadvantage in dealing with the pandemic by not having electronic voting as standard, but this is illogical: electronic voting in other parliaments generally takes place in the chamber. Suggestions for some system of ‘pairing’ or proxy voting would also not work readily in an all-virtual environment. What is needed is remote voting by digital means.
This should be possible given the availability of relevant technology. There are many voting apps on the market, although obviously in the parliamentary context security is essential. Options include verification by a unique PIN or registered mobile number. Synchronous voting is an additional challenge in a remote context; adopting something similar to a ‘deferred division’ model, whereby several votes are taken together at the beginning or end of the day, could ease things considerably. We see no need to contemplate block voting by party whips.
As already noted, the Commons select committees moved early towards remote digital working. The Clerk of the Commons has suggested that after Easter up to 20 remote committee sessions per week could be supported. This indicates no urgent need on technological grounds to scale back the scope of committee inquiries, although flexibility may be required if resources are needed for other essential business or if key staff are incapacitated.
Less critical business
Some other forms of parliamentary proceeding could be temporarily deferred, whether because they do not lend themselves readily to a virtual format or because, during the crisis, the time that they absorb might be better spent on more essential business.
One such example is private members’ bills (PMBs). In the Commons, 13 Friday sittings are set aside for PMBs each session. The rules that apply to PMBs on these Fridays – including closure motions and the quorum – would be difficult to manage virtually, almost certainly requiring Standing Order changes. A commitment from the government to honour the Friday sitting allocation after the crisis could allow MPs to ‘catch up’ later. The speaking slots set aside in the Commons for ten minute rule bills could also be dispensed with temporarily, to facilitate more time for ministerial questions and statements.
Westminster Hall sittings, where most backbench debates take place, have already been temporarily suspended. Chamber debates determined by the Backbench Business Committee are very important, but a lower priority than other business; again, lost days could be made up later in the session. Likewise, the Commons’ daily 30-minute adjournment debates are a valuable outlet, but suspending all these forms of business on a short-term basis could be justified.
Such changes would bring the Commons into line with the Lords, which agreed as early as 25 March to temporarily suspend private members’ bills and certain non-legislative debates.
3. How and by whom should the decisions about the running of a ‘virtual’ parliament be made?
A government motion is required for the House of Commons to make any necessary changes to its Standing Orders. No such motion was tabled before the Easter recess, so, for the House to approve it on 21 April, the government would have to move this as a ‘motion without notice’. This requires the Speaker’s agreement and, normally, the informal consent of other parties. If there is any risk of a division on this motion, at least 40 MPs must physically return to the Commons after Easter in order to furnish a quorum.
If members are presented with such a motion as a fait accompli, they may rightly fear being bounced into something that serves the interests of the frontbench rather than the wider interests of parliament. Those in leadership positions must therefore make maximum efforts to consult with members in advance, and to maximise the transparency of decision-making.
The response to the pandemic reveals once again the problematic nature of government control of House of Commons procedure. At a time when wide cross-party agreement is needed, significant power lies with the Leader of the House to determine both the content of the proposals and the style in which they are presented. The Speaker of the House of Commons and other key figures such as the Chair of the Procedure Committee have made suggestions, but it is the executive that in effect makes the decisions. In other parliaments, similar decisions have been facilitated by a wider and more explicitly representative body of parliamentarians – for example, the Conference of Presidents in the French National Assembly, or the Presidium of the Norwegian Storting, both of which are senior cross-party organs focused on organising chamber business. Neither chamber at Westminster has an equivalent (though in the Lords – partly due to its ‘hung’ nature –consultation and more consensual cross-party decision-making is routine).
Another key to achieving buy-in for the new arrangements will be sunset clauses and a clear review process. Just as the Coronavirus Act has a sunset clause and regular review arrangements, so should any parliamentary procedural changes. The temporary Commons Standing Order which facilitates remote working by select committees falls on 30 June unless, by 23 June, the Speaker determines that it should be extended. The same schedule could be adopted for the wider provisions proposed here, ideally with an interim review around the Whitsun recess in late May. If a measure is not working, it should be rectified quickly. And if more adaptations are required, these should be considered quickly. During the interim period, there should be regular reports from the Leader of the House on the operation of the new arrangements, allowing questioning by members.
Whatever sunsetting and review provisions are put in place, it must be clear that the arrangements made for the crisis are temporary and driven only by the unprecedented situation, creating no automatic precedent for post-crisis times. This is essential to achieve the widespread agreement that is necessary.
After the crisis has ended, a sober analysis can be made of what worked well, what did not, and what procedural adaptations members might wish to learn from in the longer term.
The authors would like to thank Sir David Beamish, Sir David Natzler, Paul Evans, Brigid Fowler, Lisa James and others for their invaluable help when preparing this post. It is also published on the Hansard Society blog.
This is the latest in a continuing 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 authors
Dr Ruth Fox is Director of the Hansard Society. She runs the annual Audit of Political Engagement project and her books include The Devil is in the Detail: Parliament and Delegated Legislation. She is a regular commentator for BBC Parliament on House of Commons proceedings.
Professor Meg Russell is Director of the Constitution Unit. Her books include The Contemporary House of Lords (Oxford University Press, 2013) and Legislation at Westminster (Oxford University Press, 2017). She is currently a Senior Fellow with the UK in a Changing Europe, working on ‘Brexit, Parliament and the Constitution’.