Backbench rebellion over parliament’s sidelining during the COVID-19 pandemic seems set to reach a critical point this week. Meg Russell and Lisa James argue that parliament’s crisis-era marginalisation is real, and part of a longer-running trend. So while government concessions now look likely, MPs should accept them only if they are genuine and comprehensive.
Backbench unease over the government’s treatment of parliament during the COVID-19 pandemic is coming to a head. On Wednesday, MPs will debate a motion to renew the government’s powers under the Coronavirus Act. But Conservative MPs’ frustration over the government’s handling of the crisis, and particularly its tendency to bypass parliamentary scrutiny, is increasingly evident.
Earlier this month Charles Walker, joint Vice Chair of the 1922 Committee and former Chair of the Commons Procedure Committee, accused the government of treating its backbenchers like dogs. Similar concerns have appeared in the Telegraph and the Times. Now more than 40 Tory MPs have signed an amendment proposed by 1922 Committee Chair Graham Brady to Wednesday’s motion. This would make continuation of ministerial powers conditional on MPs getting a vote on any future coronavirus-related restrictions – whether made under the Coronavirus Act itself or other legislation (such as the Public Health (Control of Disease) Act 1984). The amendment may have no formal legal force, and for procedural reasons might ultimately not be voted upon; but its political significance is clear.
Parliament has been sidelined
MPs have genuine cause for complaint: parliament has been consistently sidelined during the pandemic. The most frequent criticism is over the government’s use of delegated legislation. Numerous coronavirus restrictions have been imposed through regulations subject to limited parliamentary oversight, with debate often scheduled long after the restrictions themselves were announced or came into force. A critical report from the Commons Public Administration and Constitutional Affairs Committee (PACAC) noted how the requirement to wear masks on public transport was announced in a Downing Street press conference on 4 June, coming into force 11 days later; yet it wasn’t debated in the Commons until 6 July. Only yesterday regulations on self-isolation were published, coming into effect just seven hours later, and imposing potential £10,000 fines; yet, despite media briefings 8 days previously, these were not debated in parliament. Such cases raise clear political questions, but also legal ones: as the Bingham Centre for the Rule of Law points out, the underlying legislation allows ministers to bypass parliament only if a measure is so urgent that there is no time for debate.
But there are also bigger, broader concerns about parliamentary involvement. It’s an established convention that major government policy announcements should be made first in parliament – to be examined and debated by the UK’s sovereign body. Instead, ministers have repeatedly announced major coronavirus policy shifts at Downing Street press conferences, or to journalists. Speaker Lindsay Hoyle has complained about this not just once but many times, even resorting to threatening Health Secretary Matt Hancock with daily Urgent Questions. Boris Johnson announced the ‘rule of six’ by press conference, with the regulations published four days later, just 30 minutes before they came into effect. He then seemingly bowed to pressure by making a statement to the Commons last week on the latest changes; but even then, the 10pm closure of pubs was briefed to the media beforehand.
Government backbenchers – such as former Chief Whip Mark Harper – have been raising concerns about parliament’s exclusion from coronavirus policy for months. Yet ministers have generally dismissed them. Last week Leader of the House of Commons Jacob Rees-Mogg dubbed such anxieties ‘absurd’.
This is nothing new
Parliament’s sidelining over coronavirus has been striking, but is part of a longer-running trend. In his first six months as Prime Minister, Johnson cancelled or indefinitely postponed three Liaison Committee evidence sessions, unlawfully prorogued parliament, and introduced a Withdrawal Agreement Act which – unlike its predecessor – gave parliament no real oversight of this year’s Brexit negotiations. All this already suggested a reluctance to face parliamentary scrutiny.
Why scrutiny matters
There are multiple reasons to be concerned about parliament’s exclusion from decision making. The most obvious is the point of principle: that parliament is sovereign, and government is accountable to it. Parliamentary approval is essential to legitimation of government policy. The difficult decisions required by the current crisis – entailing trade-offs between protecting individual liberty and collective safety, public health and economic wellbeing – need full involvement by elected representatives.
But, crucially, scrutiny also leads to better policy-making. It’s a common misconception that parliament’s main opportunity for influence is to veto government proposals. In reality, parliamentary debate provides opportunities to flag up loopholes, ambiguities or unintended consequences which ministers may have missed. The ‘law of anticipated reactions’ also operates, meaning that parliament’s veto power encourages ministers to prepare carefully for debates, during which they may identify positions that appear hard to publicly defend, thereby fixing policy defects. Side-stepping these processes can hence result in sloppy or ill-considered policies. The government’s decision-making has hardly gone smoothly, and PACAC’s report identified several cases where flaws in coronavirus regulations might have been caught in advance by a proper scrutiny process. The Spectator reports that ‘even ministers think that some of the mistakes of the past few months wouldn’t have happened if the Commons hadn’t been so neutered’.
That was then, this is now
In March, as the country faced the unfamiliar threat of a new global pandemic, respectable arguments could be made for foregoing detailed parliamentary accountability in favour of rapid action. MPs accepted this when consenting to fast-track the Coronavirus Bill through all its parliamentary stages in just four days. Back then, parliament was still grappling with the pandemic’s implications for its own functioning, and struggling to operate in the usual way.
But that was six months ago, and these arguments no longer wash. The pandemic clearly isn’t a short-term situation, and Johnson advised the country last week that restrictions could last another six months. Parliament is now fully operational and capable of conducting scrutiny. Indeed, the government’s own argument for ending the ‘hybrid’ House of Commons in June was the need to restore its scrutiny capacity. This sits awkwardly with ministers’ subsequent reluctance to allow robust parliamentary oversight of its coronavirus response.
No government can withstand long-term hostility from its own backbenchers, so the Brady amendment may trigger some kind of concession or assurances about parliament’s future role in overseeing coronavirus policy. But the government’s resistance on these questions seems clear, and its track record of evading scrutiny hardly inspires confidence. To be convincing any concessions must be sincerely offered, and guarantee parliament full and timely approval powers over future changes. MPs should not accept anything less.
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
Professor Meg Russell FBA 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’.
Lisa James is a Research Assistant at the Constitution Unit working on The UK In A Changing Europe-funded ‘Brexit, Parliament and the Constitution’ project.