In recent weeks, the government has taken the Commons from an acceptable hybrid system to the current confused regime of limited virtual participation and proxy voting. As David Natzler has outlined in previous posts, during the coronavirus lockdown the Commons moved with surprising speed and unity to create a hybrid parliament in which MPs could participate remotely, with the same speaking and voting rights as members present in the chamber. Here David outlines how the Commons moved so fast and so far backwards on virtual involvement for MPs.
In this blog I intend to summarise the confusing developments in the past three weeks in the regime for doing parliamentary business in the House of Commons, and to analyse some of the reasons for the almost daily change of regime and the emergence of a new temporary hybrid regime.
The first regime of virtual participation: 21 April to 20 May
On 21 and 22 April, on its return from the Easter recess, the House agreed to several government motions which established a temporary regime allowing for virtual participation by members in hybrid scrutiny and substantive proceedings, and for remote voting, to endure until 12 May. The regime was founded on a resolution of general principles also agreed on 21 April, including a requirement for parity of treatment between members participating virtually and those participating in person. Virtual select committee proceedings had already been established under a separate and longer-lasting order. On 12 May the House agreed to extend the debating and voting regimes until 20 May.
Non-renewal of the regime
This regime operated successfully for the best part of a month, until the House rose on 20 May for the Whitsun recess, at which point the detailed operative Orders agreed on 21 and 22 April, but not the resolution setting out the founding principles, lapsed. It became known on 11 and 12 May through the government strategy statement and remarks by the Leader of the House, Jacob Rees-Mogg, that the government had no intention of renewing the regime of virtual participation, on the grounds that it was time for parliament to ‘get back to business’. But the government offered no opportunity over the next few days, before the House rose on 20 May, for the Commons to give its positive assent for letting the regime lapse.
Recall of 2 June
There would have been no opportunity for the House to express a view on the discontinuation of the virtual participation regime had it not been for the recall of the House to meet at 11:30 on Tuesday 2 June, three hours before its duly appointed time of 14:30. The government was by this device able to table debatable and amendable motions on the conduct of business, which otherwise would have needed to be handed in by close of business on 20 May, the last previous sitting. It may be that ministers hoped to discontinue the virtual participation regime – including remote voting – without needing debate or a positive decision of the House. The Clerk of the House, John Benger, did suggest to the Procedure Committee on 1 June that some flexibility in the practice of ‘locking down’ the agenda for the first day back after a recess might be helpful, so that the agenda for 2 June could have been changed without recourse to a recall.
Resistance to ending of virtual participation
In late May there was growing and publicly expressed discomfort at the looming return to exclusively physical proceedings, which would exclude members unable to come to Westminster for COVID-related reasons. The Leader of the House received a hostile reception from MPs whilst answering an Urgent Question on the matter on 20 May. In the week before the House’s return the Speaker made no secret of his dismay at the failure to find a generally acceptable way forward and warned that two-lobby voting had been ruled out by Public Health England. Members learned that the voting system would involve a lengthy queue of hundreds of members out from the Chamber, where votes would be cast, and into Westminster Hall. On Saturday 30 May the Procedure Committee produced its Third Report, which recommended unanimously ‘provision for virtual participation in its proceedings for those Members who consider themselves unable to travel to Westminster for as long as the pandemic persists’ [para 34] and the introduction of a hybrid voting system to allow for some remote voting [para 52]. On 1 June it heard evidence from the Clerk of the House.
2 June debate
The government’s explanation of the recall was that it was needed to enable decisions on the approach to physical divisions and social distancing in the chamber. It was also required to repeal the 21 April declaration of principles. The 2 June debate turned into an attack from all sides of the House on the denial to members absent for public health reasons of their ability to participate in debate, ask questions or even to vote on what was described as their own disenfranchisement. There were two votes – using the new queueing system – and the government won both, in the face of 31 Conservatives defying the whip and backing an amendment tabled by Karen Bradley, Chair of the Procedure Committee, which would have preserved remote voting.
4 June concessions: hybrid scrutiny proceedings and limited proxy voting
On 3 June Boris Johnson indicated at Prime Minister’s Questions that some sort of proxy voting would be introduced for absent members. The government had on the previous evening tabled a motion to restore virtual participation in ‘scrutiny’ proceedings for members self-certifying as unable to attend ‘for medical or public health reasons relating to the pandemic’. No debating time was provided and the absence of any similar provision for remote voting meant that it was not agreed to that evening. It was tabled again for 4 June, in conjunction with a further motion to allow for proxy voting for a much more limited category of ‘clinically vulnerable or extremely clinically vulnerable’ members. These changes were agreed without a vote on 4 June. The new virtual participation regime for scrutiny proceedings – narrower than the first regime, which allowed any member to participate virtually without showing cause – lasts till 7 July: proxy voting will be permitted until 29 July, as part of the six-month extension of the existing temporary proxy regime for parental leave agreed on 29 January.
8 June debate and extension of proxy voting criteria
These changes did not assuage the government’s critics. The Leader faced hostile questioning during an evidence session of the Procedure Committee on 8 June. Later that day in an emergency debate members sought an extension of the proxy scheme to the same broader category of members able to take part remotely in scrutiny proceedings, and the restoration of virtual participation in substantive proceedings. On 10 June the proxy scheme was duly aligned with the criteria for virtual participation in scrutiny proceedings. By 18 June around 150 members were listed as having appointed a proxy. The whips of the two largest parties now have almost 50 proxies each. Half of the SNP’s MPs have given proxies, mainly to their Chief Whip. The issue of resumption, in any form, of virtual participation in substantive proceedings remains undetermined.
New style voting on 17 June
On 17 June, after two weeks of the much-derided queue to vote in the chamber – a system used on five occasions – the first division took place using a new voting system, involving two parallel queues to vote at digital card readers in each of the lobbies. A Conservative backbench amendment to the Divorce, Dissolution and Separation Bill was duly defeated by 31 votes to 400. By chance the first new-style deferred division took place the same day on the Abortion (Northern Ireland) Order, which passed by 253-136, with members having four hours to vote in the Members’ Library. Since 12 May the House has experienced full remote voting, voting in the chamber and now card reader voting in the lobbies. I doubt anybody would bet against a fourth system before we are through.
Why end the first regime of virtual participation?
Throughout this chaotic period the Leader of the House has repeatedly asserted that the main reason for the non-renewal of the previous regime was the need to make progress with government legislation. This cannot refer to the progress of legislation in the chamber itself. In the weeks of the first regime of virtual participation a number of major government bills were read a second time, including the Finance, Trade, Domestic Abuse and Fire Safety bills. The quality of debate may indeed have been lacklustre in the absence of interventions, but there is no evidence that it slowed down what the Leader has called – in homage to Bismarck – the sausage machine. The Agriculture Bill, which is a key piece of Brexit legislation, has completed both report stage and third reading and progressed to the Lords. Report stage included a backbench rebellion facilitated by remote voting. While there were no delegated legislation committees, which could have been set up in virtual form, some delegated legislation was debated and agreed on the floor of the House.
Public bill committees
The Leader insisted in his 8 June evidence to the Procedure Committee that the principal problem was the absence of public bill committees since late March. There is no doubt that there was a growing queue of bills awaiting their committee stage, a number which has increased every week as the House agrees more second readings. Wholly virtual public bill committees would have been feasible. A successful pilot involving a range of members was mentioned in oral evidence to the Procedure Committee by the Clerk of the House and by Chris Elmore, a senior Opposition Whip who sits on the Committee. The Leader, in evidence to the Committee, withdrew his original suggestion that the Opposition had been unwilling to nominate members of public bill committees and conveyed the view from his advisers that the authorities had warned of ‘capacity issues’. He insisted that the government had been ‘very keen’ to get public bill committees going. It remains a mystery why that did not happen.
Rationale for ending virtual participation
So why was virtual participation ended at the end of May, only to be partially resumed in June? The answer was set out starkly in the government strategy document on 11 May: because ministers saw it as important for parliament to demonstrate to the nation that it was returning to normal. The Leader told the Procedure Committee that ‘to have extended the motions beyond the point at which the Government were advising schools to go back would have shown a lack of leadership from Parliament’. This made it necessary for ministers to demonstrate why the House could not continue to work remotely, and should therefore – in common with various other institutions, though far from all – reopen its main place of business. The strongest argument which could be advanced for that was the need to progress the government’s legislative programme. The generally admitted shortcomings of the temporary regime – absence of interventions, ineffectiveness of challenges, etc. – were not alone sufficient to justify its termination. Setting up public bill committees at Westminster within a continuance of the wider virtual participation regime – perfectly conceivable in practical terms – would not have provided the political signal which the government wanted from parliament. Whatever the risks to members and staff the regime had to be terminated, as a demonstration of ‘leadership’. The absence of public bill committees looks like an alibi.
Unlike virtual participation, which nobody pretends is that great, the remote voting regime was a victim of its own success. Members liked it only too much and it worked too well. The Leader has referred to members voting while ‘enjoying a sunny walk’. The system will have alarmed the party managers on both sides. Votes cast remotely are not susceptible to the subtle and not so subtle pressures of party and colleagues: no minister can be asked to explain personally to a would-be rebel the consequences of their vote or to offer private persuasions if they are voting remotely. The mass proxy system is not what the Procedure Committee sought for those unable to come to Westminster, but it is better than nothing and better than the offer of more pairing. However it has, as expected, concentrated such votes largely in the hands of the whips. The entire proxy system expires on 29 July: it will be interesting to see if it is renewed so as to cover circumstances other than parental leave.
A bruising time
The disputes of the last few weeks have led not only to a divided House, where at first it was admirably united in finding and implementing a solution to the pandemic, but to confusion from one day to another as to what the prevailing regime actually is. That is a real shame. The Speaker, the House of Commons Commission and the Procedure Committee, who have all worked hard to find a consensus on ways forward, have been shown in the end to be impotent in the face of a government using its majority to pursue national goals, as it is entitled to do, and seeing the House as just another institution to bring into line. Never has the absence of an authoritative institution which can speak for the House as a whole on the conduct of its own affairs been more deeply regrettable.
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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