COVID-19 and Commons procedure: back to the future?

Last week the House of Commons extended the temporary procedural arrangements designed to facilitate business during the pandemic, but did not debate the issue separately, and it is not clear if another opportunity to debate the measures will present itself. Former Clerk of the Commons David Natzler argues here that MPs are entitled to an opportunity to determine all significant aspects of its future procedures before the current arrangements expire.

On Thursday 25 March the House of Commons decided to extend for a further three months its temporary procedural arrangements in response to COVID-19, a year on from the first national lockdown. During that period there have been substantial innovations in the way the House works. Some of these have been controversial, in particular new arrangements for members to take part ‘virtually’ in questions and debates and committees, and new rules on voting, including remote electronic voting. Equally controversial has been the issue of how the decisions to continue, change or terminate these arrangements have been made and who has the power to decide: in other words, who really controls the workings of the House of Commons. Such controversy is not new. The problem was discussed at length in the Unit’s January report Taking Back Control. But the past year has given them new urgency.

The Procedure Committee published a report on 14 March, entitled Back to the Future? Procedure after coronavirus restrictions. Having given an account of developments since the autumn, the committee recommended an extension of the temporary orders until the beginning of stage 4 (currently 21 June), which was agreed by the House on 25 March. But the report also recommends that ‘the House reverts to all aspects of its pre-pandemic practice and procedure’. That reflects an amendment made to the chair’s original draft by most of the Conservative majority on the committee, led by William Wragg – who also chairs the Public Administration and Constitutional Affairs Committee. The same group of members removed a proposal that the committee should mount a further inquiry into the process of making procedural change (see the committee’s Formal Minutes).  

On Thursday 25 March the motion to renew the orders until 21 June was debated as part of a much wider debate on coronavirus regulations and the six-monthly renewal of the Coronavirus Act. The issue of the House’s procedures was naturally overshadowed and there was little reference to them other than in a speech by the chair of the Procedure Committee (see below). There can be no certainty that there will be another chance to consider the arrangements, and every possibility that they will be allowed to lapse on 21 June without further debate or vote. 

The past six months: what has changed

In January 2021 the Study of Parliament Group published a collection of essays, Parliaments and the Pandemic, as noted on this blog. It dealt with events up to the end of September; things have moved on considerably in the past six months. On 22 October 2020 the then existing regime – which permitted remote participation in questions but not debates, and proxy voting for MPs not on the premises – was renewed, without debate. On 3 November 2020 the rules for proxy voting were changed, also without debate, so as to allow even those on the premises to vote by proxy. Both measures were time limited and due to expire on 30 March. As a result of the November change, the overwhelming majority of members’ votes are now cast by a proxy, with most MPs choosing to hand this responsibility to the party whips. In late November there was also a limited ‘take-it-or-leave-it’ offer by the government to extend remote participation in debates to those medically certified as ‘clinically extremely vulnerable’. Some members wanted the House to be given the choice to extend such participation on the same basis as in other proceedings, as recommended by the Procedure Committee. The government’s failure to provide protected time for debate and decision – something which the Procedure Committee sharply criticised (in paragraphs 51-57 of its report) – meant that ultimately there was no decision either way. The unhappy outcome was therefore that members unable to attend remained excluded from debates, as had been the case since early June. On 30 December 2020 the House met on an emergency recall to agree the European Union (Future Relationship) Bill in a single sitting. At the outset a motion to restore full virtual participation in debates was agreed, but with no realistic opportunity for debate or amendment. It is that hybrid regime which has now been continued for a further three months.

 Who decides?

The comings and goings over the past year have exposed the unsatisfactory governance of the House’s procedures and practices. Nowhere is that more starkly demonstrated than in relation to the questions of remote voting and remote participation in proceedings. When all the main players – government, opposition, Procedure Committee and the Speaker – were agreed, as in April 2020, there was no problem. But in the absence of real consensus the government has the whip hand through its control of the Order Paper (the House’s agenda), and business motions, which determine whether or not a motion has time for debate and whether there can be votes on selected amendments. Notoriously, in May 2020 the Orders allowing for remote voting and for virtual participation in debates and scrutiny were simply allowed to lapse without debate. The House then voted on 2 June against continuing remote voting, but without those unable to attend in person being able to vote: never in the subsequent months has the House been given the opportunity for a straightforward vote on alternative propositions for virtual participation in debates. The renewal motion on 25 March and the related Business of the House motion did offer such a possibility in theory, and was tabled in sufficient time for amendments to be proposed. The debate was rolled up with the wider debate on coronavirus regulations and the six-monthly renewal of the Coronavirus Act. But no amendments were tabled. It may be that the system of mass proxy votes held by the whips makes it hard to push a non-party amendment on House business. The result is that the House may have missed its last chance to preserve anything from the temporary regime, since the Orders can be allowed to lapse without requiring any further assent. The hard reset sought by some will have come about by default.

Role of the Procedure Committee

The Procedure Committee has grown in status in the last year. It presided over the introduction of the short-lived regime of remote voting. It persisted in calling for the restoration of virtual participation in debates and for members to be given a chance to decide properly on the retention or scrapping of remote voting.  Yet – in line with the government’s control of the Order Paper – its proposals, like most other committee proposals, are not entitled to be on the agenda. There are a few exceptions to the general default of government control. The Petitions Committee can decide what is debated on Monday afternoons in Westminster Hall. The European Scrutiny Committee system of control – with its many faults – depended for its efficacy on its ability to have a document debated and at least decided upon by the House. But these powers have been denied to the committee delegated by the House to examine and report on its procedures. Ideally, where either the Leader of the House or the Procedure Committee has a proposal to put to the House, time would be allocated for an amendable motion to be debated and decided, with time to consider and vote on amendments. That way the House would control its own procedures.

Administrative changes preserved

Not everything is for the House to decide. The House of Commons Commission – which is responsible for the administration and services of the House – agreed its own plan for administrative transition on 8 March 2021, starting with a graduated return of MPs’ staff to Westminster, then later a return to full catering services and even the prospect of the resumption of commercial tours in August. And there have been a number of minor changes in practices over the past year which will not be rewound, and are properly the sphere of the House administration: such as the electronic laying before the House of government documents and parliamentary papers.

Speaker’s powers: call lists and card voting

But more importantly there are changes in practice which are a matter for the Speaker. Perhaps the most significant is the advance publication of call lists, which set out which MPs will be selected to ask questions or take part in debate, and the order in which they will be called. This is not universally popular, since it limits spontaneity, but has now become the practice for all proceedings. Whether it continues is a matter for the Speaker and his Deputies. Another potentially controversial change is the use of card voting terminals in the lobbies, where a member presents their security card to a machine to record their vote. Even if standard pre-COVID lobby voting were restored and mass proxy voting ended, as seems likely, there is no inherent reason to revert to recording votes by division clerks and counting them by deploying tellers in each lobby. The Procedure Committee’s most recent report revealed that the Leader of the House, Jacob Rees-Mogg, now favours retention of card voting. As matters stand, this too is ultimately a matter for the Speaker to determine. The proponents of a reversion to pre-COVID practices may struggle to find an opportunity to test the opinion of the House on either of these two changes.

Select committee meetings

One of the lasting parliamentary images of the year of COVID has been of witnesses before select committees appearing remotely. That has long been possible anyway, if usually confined to witnesses overseas. As an existing practice it is likely to continue on a significant scale, without requiring rule changes. What has been new is that members have been able to participate remotely in private and public committee meetings, under the terms of the Select Committees (Participation and Reporting) Temporary Order of 24 March 2020. This Order, passed in a rush before the House rose early for Easter, left it to the Speaker to make suitable arrangements for committees, and empowered him to extend them beyond 30 June for as long as he thought fit, which he has done. So that Order has not had to be renewed as have the other virtual participation Orders. But its validity expires at the end of the current session, likely to be in early May. The Procedure Committee’s Back to the Future report notes (at paragraph 38) that the Speaker had indicated that he was content for this system to become permanent. One way or another, the future of the regime for members’ remote participation will need to be settled when the House returns in April, and the views of the Liaison Committee, comprised of select committee chairs, will quite rightly be very influential.

‘Consensus by cheat’?

Control of the workings of the Commons lies in a number of different places. Some administrative changes fall under the purview of the House of Commons Commission and the Clerk of the House. Others which shade into more procedural territory are, for better or worse, in the gift of the Speaker, subject always to the decisions of the House. But many of the most significant procedural questions are, properly, questions for the House. And, as the examples above show, the government’s control of the Commons agenda means that it has the power – if it so wishes – to limit or stymie Commons debate and decision on these topics.

Eventually the House should be asked whether it wishes all or part of the regime of virtual participation in proceedings to come to an end. It is conceivable that a majority of MPs would vote to allow all such participation to continue for defined categories of member, or for defined proceedings, for as long as the public health emergency persists. Alternatively – and the mood music of the minutes of the recent Procedure Committee suggests that this may be a majority view – the House may decide that it wants to end all such participation. It is plainly right that changes introduced on a temporary basis should not be made permanent by default: what the Leader of the House has characterised as ‘consensus by cheat’. But by the same token it would surely be ‘cheating’ to use the government’s control of the agenda to deny the majority of MPs a chance to decide one way or another on important matters, whether that be parliamentary procedure or cuts to the overseas aid budget. Before the expiry of the current temporary regime, the House is entitled to an opportunity to determine all significant aspects of its future procedures on the basis of an amendable and debatable motion, as the Procedure Committee has repeatedly said. In evidence to the Liaison Committee on 24 March the Prime Minister indicated in response to the committee’s chair that he was willing to have such a debate. Giving the House the chance to decide on its own procedures is surely a touchstone of parliamentary democracy.

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.

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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

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