Since the passage of the Coronavirus Act 2020 and the UK ‘lockdown’, there has been much debate on this blog and elsewhere about how the House of Commons should function during a period of ‘shielding’ and ‘social distancing’. Little attention has been paid, by contrast, to the procedures and practices adopted by the House of Lords. As David Beamish explains, the Commons has tried to return to ‘normality’, whereas the Lords has embraced hybrid proceedings and remote voting in a way that may leave it irrevocably altered.
On 9 March the House of Commons Commission and House of Lords Commission issued a short joint statement following a meeting ‘to discuss Parliament’s response to Coronavirus’. On 11 March the World Health Organization declared a pandemic, and on 13 March the Speakers of the two Houses, Lindsay Hoyle and Lord (Norman) Fowler, sent a joint letter to all members about restrictions on parliamentary travel and visitors to the parliamentary estate in order to reduce the risk of infection from COVID-19. They sent another joint letter on 17 March, announcing more stringent restrictions on access to the estate. Since then, however, the approaches taken by the two Houses have diverged significantly. The Commons initially introduced hybrid proceedings in April, while the Lords introduced a mix of virtual-only and physical-only proceedings, subsequently moving to a hybrid model only this month – just as the Commons ended its own hybrid arrangements. David Natzler’s blog post of 13 May set out what the House of Commons had done to enable MPs to operate remotely, and the dismantling of those arrangements has since caused significant controversy. This post looks at what has been happening in the House of Lords, which has attracted far less public attention. As things stand, the Lords seems to have now instituted the very kinds of proceedings that many MPs are pressing to see reinstated.
The Lord Speaker works from home
On 19 March the 82-year-old Lord Speaker made a personal statement, announcing that he would ‘withdraw from the House for the time being’, and that he would be ‘working from home’ – with his Woolsack duties to be carried out by his deputies.
The average age of the Speaker and his 23 deputies was at that point 76, with only four aged under 70. So it was unsurprising that on 23 March the House agreed to a motion that ‘until 21 July 2020, and notwithstanding the normal practice of the House, any member of the House may perform the duties of a Deputy Chairman without further motion’. Five additional members took on this role, and on 21 April were formally appointed, at once reducing the average age of the panel by over three years.
Initial restrictions on business in the chamber
On Thursday 25 March, before the House adjourned for an extended Easter recess (which had been due to start at the close of business on 1 April), it agreed to a business motion restricting until 21 May (the start of the Whitsun recess) the kinds of business which could be taken: there would be no Private Members’ Bills, balloted debates or Questions for Short Debate. In moving this motion the Leader of the House (Baroness Evans of Bowes Park) announced that for the first three weeks after the return of the House on 21 April it would sit only on Tuesdays, Wednesdays and Thursdays. On Tuesdays it would meet at 1pm (instead of 2.30pm) and on Wednesdays at 11am (instead of 3pm); Thursday sittings would begin at 11am as usual. She also announced ‘that a working group of senior officials from both Houses and the Parliamentary Digital Service has been set up to develop effective remote collaboration and videoconferencing’.
When the House returned at 1pm on Tuesday 21 April, the scene in the chamber was strikingly different from normal, with only about a dozen ‘socially distanced’ members physically present. The first business was the introduction of two new life peers, Lord Grimstone of Boscobel and Lord Greenhalgh, who had quietly been appointed ministers in March. They did not wear robes and did not have the usual two supporters.
The next business was a motion to enable members to participate remotely in ‘virtual proceedings’ for most types of business, and the first such proceedings began at 3pm the same day. Thereafter, during the 17 subsequent sittings prior to the introduction of ‘hybrid proceedings’ on 8 June, proceedings were wholly virtual on 11 days, and proceedings in the chamber were usually brief and never lasted longer than 1¾ hours. Virtual proceedings excluded consideration of government bills and formal procedural decisions. But only a few such items of business were taken in the chamber over this period, including the second reading of the Prisoners (Disclosure of Information About Victims) Bill on 28 April. Importantly, by convention the Lords does not divide on the second reading of government bills, meaning that the reduced numbers present were not a major factor. Virtual proceedings did allow debate (but likewise not voting) on delegated legislation, and some Coronavirus regulations were debated in this way.
Detailed guidance on the operation of virtual proceedings had been issued by the House of Lords Procedure and Privileges Committee on 16 April. That provided for members to participate remotely by means of Microsoft Teams (changed to Zoom in revised guidance issued on 30 April).
The impact of the use of virtual proceedings on the conduct of business was dramatic. Whereas previously members wishing to ask a supplementary question had to stand up and (more often than not) compete with other members wishing to do so, now members had to sign up in advance, and the speaking list issued before each sitting by the government whips’ office listed them in an order agreed through the ‘usual channels’ (i.e. group leaders/convenors and whips), with a limit of 10 per question. Each questioner was called by the Lord Speaker or deputy, with some likely to be disappointed if not reached within the time allowed. In debates there was no opportunity to interrupt a speaker. In other words, the House’s tradition of ‘self-regulation’ whereby the Lord Speaker has little power to regulate proceedings and, if there is competition to speak, the House decides which member it wishes to hear, was replaced by a much less flexible regime, with significant new power in the hands of the party machines.
The question of how to conduct divisions, which has been the subject of considerable interest in the House of Commons, did not initially arise because the types of business conducted virtually did not require them. On 6 May the House agreed to extend the use of virtual proceedings to committee stages of bills, but as Grand Committee amendments require unanimity, this did not require the creation of a new voting mechanism.
The initial motions and guidance dealt only with proceedings of the House, but meanwhile the House of Lords business issued on 17 April indicated that several of the planned select committee meetings would be ‘virtual meetings’. By 22 April, all planned meetings had become virtual.
Financial support for members
On 27 April the House of Lords Commission met to discuss how the system of financial support for members – an allowance for each day a peer attends – would apply to virtual proceedings. The minutes of the Commission meeting record that the Leader of the House ‘suggested the immediate suspension of the current allowance system and a new much lower allowance for members who speak during proceedings or participate in the work of a select committee’. Some other members suggested the complete suspension of the system of allowances, but the Commission’s conclusion was that with effect from 21 April there should be ‘a temporary system which recognised the contributions made by Members in the new virtual proceedings and in virtual committee meetings’. The Commission agreed that the maximum claimable daily sum should be reduced to £162, and that this should be the case both for those who participate in virtual proceedings or committee meetings and those who participate in person – with the reduced amount thereby disincentivising physical attendance.
On 6 May the House, after some debate, agreed to a motion introducing this temporary arrangement. The motion clarified eligibility for the allowance as follows: ‘In respect of attendance at a physical sitting or virtual proceeding of this House only Members who speak during the sitting or the proceeding, or who are otherwise necessary to the proceedings, should be entitled to an allowance.’ Thus the number of members able to claim is limited – and a member who has signed up to ask a supplementary question but whose name is not reached in time is presumably unable to claim. The result of this will no doubt be that some members who have been regular attendees will have had a substantial reduction of income.
The hybrid House
The combination of proceedings in the chamber and (for the most part) virtual proceedings continued until 4 June, when, hard on the heels of a decision by the Commons to abandon hybrid proceedings, a new motion was agreed introducing a ‘hybrid House’ with effect from 8 June. From then on members would be able to participate either in the chamber or remotely. Interestingly, soon after the House of Commons had ended the use of remote voting in divisions, the House of Lords motion provided for all such voting to occur remotely, with members able to vote only ‘through the House of Lords remote voting system, in accordance with guidance to be issued from time to time by the Procedure and Privileges Committee’. Initial guidance on the hybrid House was issued on 5 June, but in relation to divisions it stated only (in paragraph 33): ‘A system to allow remote voting is being developed. The Order of the House of 4 June made provision for this. Separate guidance on voting will be issued in due course.’ A report made on 3 June by the Conduct Committee indicated that it was hoped that remote voting would ‘be rolled out in the week beginning 15 June’. It also recommended the addition to the Code of Conduct of a provision as follows: ‘Members may not allow another member or other person to cast a vote on their behalf during any electronic division in proceedings of the House or its committees. Any member who does so commits a breach of this Code which the House would view with the utmost seriousness.’ The House agreed to implement the report’s proposals on 9 June.
The number of members permitted to be in the chamber at any one time has been limited to 30, and, again as in the Commons, short adjournments between items of business are used ‘to enable different groups of members to exit and enter the chamber while observing social distancing, as well as to onboard members remotely for the next item of business’.
The arrangements for proceedings in the hybrid House continue the greater formality introduced for virtual proceedings – in ways similar to those which have begun to operate in the House of Commons during the crisis. Except in relation to certain business motions, members may speak only by signing up to do so, including in relation to proceedings on amendments to bills, and in doing so they are required to indicate whether they wish to participate physically or remotely. This is necessary for remote participation simply in order to indicate a desire to speak (which members would normally do by standing), but is also necessary for physical participation in order to establish which members have priority access to the chamber at any one time. The deadline for tabling amendments to bills has been increased to three working days before consideration – previously it was in practice one day, with the possibility of ‘manuscript’ amendments even later; it is not yet clear how that could operate in the event of a bill being ‘fast-tracked’.
On the speaking list issued for 8 June, only nine of those listed, including three ministers, had indicated an intention to be present in the chamber, whereas some 120 were listed as wishing to participate remotely. At the start of proceedings, well under half the permitted maximum of 30 members were visible in the chamber. They included the Lord Speaker on the Woolsack, returning for the first time after his period of ‘working from home’. Thanks to relatively brief questions and answers, only four of the 50 members wishing to ask supplementary questions were not reached. Reading of questions in the chamber is officially frowned upon, but it is clearly much easier to read questions discreetly when working remotely!
The introduction of a ‘hybrid House’ has not further affected select committees, and all future committee meetings listed in ‘House of Lords Business’ are still virtual meetings.
The continuing use of hybrid proceedings should enable those members of the Lords who are most vulnerable to continue to participate in the work of the House, and is to be warmly welcomed – see the cogent criticism of the ending of the hybrid House of Commons in a letter from a group of democracy experts to Jacob Rees-Mogg.
The pattern now appears to be set for the great majority of members of the House of Lords who wish to do so to participate remotely in the business of the House. No one can predict for how long the current arrangements will continue, but it seems clear that there will be a lasting effect on its operation and atmosphere. The description which has (unfortunately) sometimes been applied to the House of ‘the best club in London’ may not be warranted for some years, if ever again.
On 19 May the Sponsor Body established in April under the Parliamentary Buildings (Restoration and Renewal) Act 2019 announced a review to ‘assess whether a recommendation made in a report five years ago that all MPs and Lords should leave the Palace of Westminster while the work was carried out is still the ‘best and most cost-effective’ option’. One aspect of the review is to be ‘how ways of working developed in response to COVID-19 affect options or requirements for temporary accommodation’. Perhaps especially in relation to the House of Lords – where the system of financial support is such that few members are able to employ support staff – the need for temporary accommodation seems likely to be reduced when members have become used to working from home. Even after the restoration and renewal of the Palace of Westminster, remote working by members might become a normal part of the operation of the House, in a way that could hardly have been imagined before the impact of the pandemic began to be felt.
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 author
Sir David Beamish was Clerk of the Parliaments (i.e. most senior official in the House of Lords), from 2011 to 2017 and is a Senior Research Associate at the Constitution Unit.