Earlier this year, the Study of Parliament Group published a collection of 25 essays on how parliaments across the UK and further afield have responded to the pandemic. They consider not only aspects of the response in the two Houses at Westminster, but also in Northern Ireland, Scotland, Wales, the Crown Dependencies, New Zealand and other international comparisons, including case studies of the Maldives and Bahrain. Paul Evans summarises some of the themes here.
Executive assertion and parliamentary compliance
As the full scale of the threat posed by COVID-19 began to be recognised, governments wanted to take powers and parliaments were for the most part initially willing to cede them, with little protest when the normal procedures were abrogated. In most cases the legislatures, initially at least, willingly handed over very extensive powers to their governments to make emergency legislation and this was generally done with unusual expedition and, as a result, scant scrutiny.
The problem was perhaps most acute in the area of delegated legislation, resulting in government more or less by decree, as Tom Hickman sets out in his contribution to the volume. At the best of times, the scrutiny of this at Westminster – particularly in the Commons – is open to, and regularly receives, criticism. When actions were first taken to control the pandemic, it was widely suspected that the UK government was deliberately reducing the level of potential parliamentary scrutiny. This suspicion applied to a lesser extent to other executives, which introduced a large number of instruments which took effect in advance of being approved by the legislature.
However, as all the examples, domestic and international, demonstrate, there is an eternal conflict in the procedures underpinning democratic systems between a diversity of voices and a unity of purpose, between efficiency and accountability, between deliberation and decisiveness, and between consent and control. The pandemic, like any national emergency tends to, dramatically highlighted these tensions. In one essay in the volume, Paul Seaward notes that the extent of the use of emergency powers seen in the UK parliament in 2020 is unprecedented in peacetime .
In all the legislatures described in these essays there has been an understandable willingness to give their governments a long leash. It is probably too soon to say whether the right balance was struck – even with benefit of hindsight it will be contested whether legislatures discharged effectively their obligation to hold governments to account. But they were, of course, faced with formidable difficulties in doing so.
Adapting to the digital world
Those difficulties included, centrally, the requirement to adapt to a digital world. Different parliaments experimented with different iterations of restricted ‘in-person’ proceedings, virtual proceedings and hybrid models combining the two. In terms of allowing essential business to continue, these were generally successful. The clearest point of friction was voting.
The importance or otherwise of the physical presence of legislators in the legislature was a key source of debate almost everywhere. A number of the essays discuss different aspects of presence in a socially-distanced world and the vocabulary used to describe the ‘good parliamentarian’. Voting was one of the most acute areas of conflict, but oddly in a way the easiest to resolve through technology. The remarkably heavy weather made of it by the UK House of Commons (which rapidly came up with an app-based voting system but almost immediately abandoned it for a cumbersome in-person system and then surrendered to proxy voting) seems particularly inexplicable. The contrast at Westminster with the Lords is striking – that House (self-regulating and less at the mercy of the executive) continued with remote voting throughout the crisis and, as a result, voting participation numbers in the Lords have risen significantly. The Scottish Parliament adopted electronic voting – the New Zealand House of Representatives, however, reduced the restrictions on proxy voting so as to hand even greater power to the whips. The Welsh Senedd had also initially gone down the path of wholesale proxy voting, but moved to app-based voting from any remote location in acknowledgement of the rights of backbenchers to dissent from the party line.
Technological adaptations also provided a surprisingly workable solution for the most part to participation in plenary debates – with the Welsh Senedd going ‘all virtual’ for a while. Most opted for some form of hybridity between in-person proceedings and virtual participation. Several essays reflect the many complaints there have been about the cumbersome inflexibility of such proceedings. The necessity of pre-planning the complex choreography required, especially where physical and virtual participation are intermingled, is felt to have drained many proceedings of spontaneity and immediacy. On the whole this has been seen as having handed the advantage to executives, whose representatives are much more easily able to duck challenges and to avoid being forced to go off-script.
However, it has become easier to participate for elected members who are geographically distant from their parliaments, for those who have health issues, those who have caring responsibilities, and all of those who have to juggle life between their constituency and their place of legislative work, which in some cases are hundreds of miles apart. Local relationships have, it seems, often flourished as a result, as one MP emphasised in his contribution.
The pandemic itself has almost universally vastly increased the engagement between electors and the elected, with the numbers of electors contacting constituency offices rising massively, although it may also mean that the digitally excluded are even more disadvantaged than before. A lot of politics takes place informally, in ad hoc conversations and in chance meetings.
It is in the world of committees that the benefits of a digital world seem to have been most positive. Almost universally, the essays report significant benefits to wider participation by the public in committee inquiries as the barriers of geography and time have been dissolved. Some experiments may pave the way to a more reflective and thoughtful approach to evidence-gathering by committees, as an experiment by the Commons Foreign Affairs Committee described in the collection may indicate. New Zealand has already agreed to changes to standing orders to make most of its adaptations of committee procedures permanent.
However, there may be so far unquantified downsides to all this apparently frictionless communication. Although the escape from the raucous hurly-burly of crowded chambers, and the relief from the inaccessible and sometimes intimidating committee rooms, has amplified some voices, it may also have muted others.
Tensions between two kinds of presence
The tension between the work of elected members in their local communities and in the legislature has only been sharpened, not created, by the pandemic restrictions. Workplaces are important in supporting elected members in a difficult job through informal mentoring and psychological support. But they are also the spaces in which conformity and groupthink grow, and where subtle forms of coercion and socialisation into normative behaviour and opinions can be practised.
The buildings in which parliaments meet can help to conjure up an imagined constitutional environment which adds texture to the daily grind of politics – but they can also overpower the capacity to imagine different ways of doing things. New parliamentary buildings in Edinburgh and Cardiff were physical manifestations of the ambition to do things differently. If Westminster ever finally gets around to the wholesale ‘restoration and renewal’ of the Palace of Westminster it is to be hoped that it can incorporate some of the lessons of the new ways of working provoked by the events of 2020 – and that the ‘renewal’ will not always take second place to the ‘restoration’.
One of the problems confronted by all the parliaments described in the volume of studies – to a greater or lesser extent – was establishing who was in control. In the UK, the crisis highlighted once again the extent to which the Commons is at the mercy of executive whim, as discussed in a recent Constitution Unit report. Parliaments must be both watchful and assertive: the impact of the COVID-19 pandemic has again demonstrated the ever-present risk that executives will use a crisis to rebalance power even further in their favour.
Lessons for the post-pandemic parliament
The ‘Afterword’ to the volume asks what is likely to survive from the pandemic adaptations, what should be abandoned, and what should grow out of them. It concludes:
- Virtual, or at least hybrid, committees are here to stay.
- Technology might have the potential to enable a different balance to be struck between a member’s presence in the constituency and presence in the legislature and, in doing so, change who is able to participate in politics.
- Digital engagement by constituents has increased yet more during the pandemic, and elected members need to be supported in dealing with this. But the consequential risk of digital exclusion needs to be addressed.
- Remote voting makes a lot of sense in enabling people to more easily work as politicians and retain a semblance of work-life balance.
- Parliaments need to do better at scrutinising delegated powers before they are handed to ministers, and to redouble efforts to make scrutiny of delegated legislation once made fast, forensic and effective.
- Ever-expanding estates to accommodate our legislators in one place may not be necessary. Parliaments could become more pervasively present throughout the jurisdictions they represent.
- Parliaments need effective governance arrangements to enable them to seize control of their own destiny without the permission of executives, and to ensure solutions to problems like the pandemic cannot be imposed by executives without their consent (a theme discussed in the recent Constitution Unit report Taking Back Control).
- The opportunities of the digital world need to be used to increase, rather than stifle, effective oversight.
But it will be the present members of legislatures, accustomed and accommodated to traditional patterns of working, who will decide which innovations will stay and which will be discarded. Those outside, who might see some of the pandemic-induced reforms as making politics more accessible to a wider range of people, will not have a say.
This is the latest in a series of Unit posts about the continuing effects of COVID-19 on the constitution. For other blogs in the series see here.
If you enjoy the Constitution Unit blog, sign up for updates in the left sidebar, join our mailing list for news of our events and research, and support us through a one-off or regular donation. Donations are crucial to funding the blog, and the Unit’s research.
About the author
Paul Evans is an Honorary Senior Research Associate at the Constitution Unit, author of the Unit’s 2020 report, Braking the law: Is there, and should there be, an executive veto over laws made by parliament and co-editor of Parliaments and the Pandemic. He worked as a Clerk in the House of Commons from 1981 to 2019, retiring as Clerk of Committees, responsible for the staff of the House’s select committees.
Pingback: The Charter Unit weblog in 2021: the 12 months in evaluate – My Blog
Pingback: The Constitution Unit blog in 2021: the year in review | The Constitution Unit Blog
Pingback: COVID-19 and Commons procedure: back to the future? | The Constitution Unit Blog
Pingback: I·CONnect – What’s New in Public Law
Pingback: Review of Parliaments and the Pandemic – Study of Parliament Group