Since David Natzler last wrote for this blog on the options available to parliament when it returns this week, the Commons and Lords have been making their arrangements for a ‘virtual parliament’. In this post, David discusses the plans put forward so far and the obstacles to their implementation. He argues that the most difficult question, if a virtual parliament is approved, is how MPs and peers will vote.
In the first part of this blog I want to record three particular aspects of the way in which proposals for virtual parliamentary sittings have developed since my blog of Sunday 5 April. In the second part, I look ahead at likely and desirable outcomes. I conclude with some further thoughts on voting.
The expanded role of the House of Commons Commission
The House of Commons Commission held virtual meetings on Monday 6 and Thursday 16 April. At its 6 April meeting it warned that any special arrangements for the House’s return on 21 April would need to start in the preceding week. At its 16 April meeting the Commission endorsed plans for the use of Zoom to allow up to 120 members to take part in interrogatory virtual proceedings, and for up to 50 members to take part in the Chamber. This hybrid arrangement will need the approval of the House on 21 April.
The Commission is a statutory body which employs the staff of the House and oversees its expenditure. Its assent is required for new services, including digital services and equipment, such as new screens for the Commons chamber or new software. It has no authority to determine how the proceedings of the House should be conducted. But it fills a vacuum in the House of Commons, bringing together for formal decision making the Speaker, who chairs the Commission, the Leader of the House, the Shadow Leader of the House and a senior SNP member, Pete Wishart. These members can be expected to represent their parties, so if the Commission is willing to fund and support the preparatory work for a scheme of virtual participation, and set out in considerable detail how it should work in practice, then it must be assumed that the party leaders support it, at least in outline. As the Clerk of the House and the Director General are also members of the Commission, its proposals can be expected to be capable of implementation. To that extent the Commission has been acting as a substitute for what is missing at Westminster, a House Business Committee or Bureau, as is common in many parliaments and was recommended by the Wright Committee in 2009.
The Lords leadership
The Lord Speaker published a letter on Wednesday 7 April which set out his view on the way ahead, involving a mix of remote and present members, requiring a pre-selected list of participants. He also revealed that he was being specially advised on this by former BBC Director-General Lord Birt. On Thursday 9 April a letter was published from the Lord Speaker, the leaders of the three principal parties in the Lords, and the Convenor of the Crossbenchers, to inform peers that from 21 April the plan was to hold oral questions and statements as much as possible ‘virtually’, with limited physical participation. Such proceedings would not be broadcast live, although transcripts would be published afterwards. Members wanting to take part were strongly encouraged to familiarise themselves with Microsoft Teams. All peers were ‘strongly urged …to avoid attending the House while the current restrictions apply’, seeking ‘as minimal physical presence as possible.’ Peers were assured that the House of Lords Commission would look at how the allowances system – which is currently based on physical attendance – could be adapted to reflect this new, temporary way of working; an issue raised by some MEPs in connection with the special remote voting sessions in the European Parliament.
On Thursday 16 April the Lords Procedure Committee, chaired by the Leader of the House of Lords Baroness Evans, published a nine-page guidance document setting out how ‘Virtual Proceedings’ are to be conducted. This guidance will be binding once a motion is agreed to that effect in the chamber on 21 April. Virtual Proceedings are not to be sittings of the House of Lords, although they will be protected by parliamentary privilege. In an apparent shift from earlier plans for hybrid sittings, it will not be possible to participate in these proceedings from within the chamber. Thursday’s non-government backbench business will also be Virtual Proceedings. The Guidance states that legislative proceedings involving a decision of the House must be taken or at least ratified in physical proceedings, and envisages the two second readings scheduled for that day proceeding with only frontbenchers in attendance. There is no reference to voting procedures.
House of Commons Procedure Committee: a sharp division of opinion
On Monday 6 April the Commons Procedure Committee published a letter to the Speaker, the outcome of a virtual meeting of the Committee on 1 April. Its calls for a scheme to be put to the House for written questions and answers to be allowed in the event of any substantial adjournment, and for remote voting in the forthcoming ballot for the chair of the BEIS select committee, are not controversial. But the letter tellingly refers to ‘the sharp division of opinion among colleagues on how the House should continue to operate during this period,’ as to whether members should stay away and perform remotely or appear in person as, in essence, key workers. Doubts are also expressed that a secure remote digital voting system could be produced in the time available, and the preference seems to be for deferred divisions or extensive pairing. The committee is likely to produce a further report before the House resumes on 21 April.
Both Houses face the issue of having to meet physically in plenary session on 21 April in order to authorise virtual proceedings. In the Lords the way forward has quite openly been decided by the party leaders, who also control the Procedure Committee which sets the rules. In the Commons authority is dispersed; its Procedure Committee is a backbench committee without executive powers, and there is no ready-made body to establish a cross-party consensus on the way forward. The Lords can already see the motion to be put to the House of Lords. The Speaker and the Commission have sought to fill that governance vacuum, but it need not have been necessary for them to have done so.
Outcome in the Commons on 21 April
The Speaker will probably allow the government to move a motion without notice on 21 April, directly after Prayers, and after he has made a statement. That motion need not be highly detailed. It can easily leave to the Chair the detailed arrangements for virtual interrogatory proceedings to be conducted along the lines of the Commission decisions of 16 April. But there is one fundamental question which must not be left in abeyance: whether hybrid proceedings are still envisaged, in which backbenchers physically present in the chamber will be allowed to take part in questioning on an equal basis with those participating remotely, or whether participation is to be limited to members using Zoom. There may as yet be no consensus on this issue, but members and the public are entitled to know in advance what is being proposed by the government well before Tuesday afternoon.
The worst outcome on 21 April would be an ill-tempered debate with a number of members opposed to virtual proceedings attending to make their views known and even ultimately seeking a division on amendments to the scheme or against the scheme itself. Those members who feel strongly that they should not be travelling to Westminster to attend the House are of course those least likely to be there on 21 April to press that view. Some members will have to be there to ensure that the ‘virtual’ motion goes through with an adequate majority. There is a strong likelihood that it will. In that case it will be Marco Longhi who asks the first virtual question of the Secretary of State for Wales on 22 April (on the reasonable assumption that Justice Questions on 21 April will be postponed).
Interrogatory virtual proceedings in the Commons: Oral Questions, Urgent Questions, Statements
If they are agreed, how different will these virtual proceedings be? Oral questions may be frustrating for many backbenchers. The normal ebb and flow of supplementary questions between backbenchers may well be confined, at least at first, to opposition party spokespeople, the relevant select committee chair and possibly minor party leaders. That has the advantage that all those with listed questions may be reached, although it may be harder to maintain party balance. Secretaries of State may wish to do without topical questions – those posed without notice – as they cannot rely on a more specialised member of their ministerial team answering. But it would be retrograde to drop topical questions for that reason; after all the Prime Minister copes on his or her own. The recent post on this blog by Ruth Fox and Meg Russell suggested that, to the contrary, there should be more topical questions in this period.
Legislative and other decisive proceedings
The prospects for substantive proceedings on bills, delegated legislation and motions are less rosy, mainly because such proceedings require a formally recorded decision of the House and are susceptible to a vote [see below]. Both Houses were due to have legislative proceedings on 21 April: the Commons is scheduled to debate second reading of the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill, and the Lords was set to complete all stages of the Windrush Compensation Scheme (Expenditure) Bill. The chances are that in the Commons there will be no substantive proceedings at all this week, unless and until the Zoom experiment has proved successful. The Lords Procedure Committee Guidance Note suggested that the Windrush Bill would go ahead in the normal way.
In the Commons there are controversial motions scheduled for 22 April on setting up the Liaison Committee, (with the government seeking to appoint Bernard Jenkin as its Chair), and to establish the membership of the Scottish Affairs Committee. Both are likely to require a vote of the House: so may have to await a later week, as will any controversial business. That is not tolerable for much longer.
Voting: digital solution
Voting is the elephant in the room. The doubts expressed by the Procedure Committee about the rapid availability of a secure remote digital voting system may be well-founded. But if it were required by a decision in principle by the House, a system would be procured. There is no other practicable way in which every member can be given an individual vote on each question. The many alternatives being canvassed have attractions to different stakeholders but all fall short of the best (and ultimately the simplest) solution. Nonetheless these options cannot be merely dismissed.
‘Weighted voting by roll call’
The National Assembly of Wales held what was described as a virtual vote on 8 April, on Stage 1 [equivalent to second reading at Westminster] of the controversial Local Government and Elections (Wales) Bill. It passed after a short virtual debate by 30 to 25. In fact the vote was conducted by bloc voting, whereby each leader cast their party’s votes. The Assembly called this ‘weighted voting by roll call’.
Extension of the Speaker’s power to declare the outcome of a question on the basis of his informed interpretation of the shouts of Aye and No, possibly combined with a formal record of each party’s position on the question, denies individual members on all sides the power to give or withhold their vote against the party whip. It could also undermine the ability of smaller parties such as the SNP or the Liberal Democrats to force a division as a means of putting the Official Opposition on the spot: not uncommon in recent years.
Pairing, proxies, deferring
Pairing is too blunt a weapon to scale up. If the idea is to ensure the same numerical majority the government expects to have – around 80 over all other parties in a straight party vote – and there needs to be some opposition members voting, a lot of members would still need to attend to vote in the lobbies. It would put an intolerable pressure on rebels to attend against their will. The same is broadly true of ‘proportional pairing’ as being operated in other parliaments. If 100 members out of 650 attend to vote the expected government majority would be around 12, by 56-44. But that is really bloc voting by another name. And while deferred divisions, using a written ballot paper later in the day or on a later day, may obviate the requirement to queue to vote in the lobbies, they do nothing to deal with attendance of large numbers, unless accompanied with formalised proxy voting on an industrial scale. Such proxies are likely to be given to the whips, bringing us back to bloc voting. And no solution which requires or incentivises attendance in the chamber is feasible in current circumstances.
Back to digital
That is why I still believe that a remote digital system will have to be accepted as the least bad option, even if it has foreseeable glitches and snags. While it may be asked if either House will willingly resume traditional divisions having tasted the digital future, it may on the contrary be that experience of a sub-optimal digital stopgap will make members yearn for the certainties of the lobbies.
After the lockdown
Normal service will eventually be resumed. We cannot tell what changes will prove to be irreversible. Whatever is retained or rejected it should not be the technology that drives the outcome, but the best interests of a functioning democratic assembly in all its complexity and diversity.
This is the latest 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.