The marginalisation of the House of Commons under Covid has been shocking; a year on, parliament’s role must urgently be restored

A year ago today, the House of Commons returned from Easter transformed by Covid. Since then, accountability for far-reaching government policy and spending has often been limited, many MPs have been excluded from key virtual proceedings, and whips now hold over 500 proxy votes. Meg Russell, Ruth Fox, Ronan Cormacain and Joe Tomlinson argue that the combined effect in terms of parliament’s marginalisation has been shocking, and that there are risks of government becoming too comfortable with decision-making which evades proper parliamentary scrutiny. One year on, more robust parliamentary accountability must urgently be restored.

A year ago today, the House of Commons returned to business transformed by Covid. Since March 2020, the public has lived under some of the UK’s most restrictive peacetime laws, and to support the economy public money has been spent on a vast scale. Yet parliamentary accountability for, and control over, these decisions has diminished to a degree that would have been unthinkable prior to the pandemic. One year on, with lockdown easing, the restoration of parliamentary control and functioning is now an urgent priority.

This post highlights five ways in which the government’s approach to the House of Commons during Covid has marginalised MPs. In a parliamentary democracy, government accountability to parliament is a core constitutional principle. But in a national emergency, when time for normal process is short, the gravity of the situation can require that parliamentary scrutiny be temporarily sacrificed in exchange for broader accountability. Yet the government has failed to keep its side of the bargain. Too frequently, announcements have been made at press conferences, or briefed privately to the media, rather than presented for democratic scrutiny and questioning by MPs. Ministers have sought extraordinary powers while consistently excluding both the House of Commons as a whole, and certain MPs, from participating in proper oversight.

In the early days of the pandemic necessity arguably justified this approach. But a year on, a real risk exists of damaging precedents being set. This is magnified by the fact that some recent developments have accelerated negative trends predating the pandemic. Unless MPs collectively take a stand against parliament’s continued marginalisation by ministers, what was once extraordinary risks becoming the norm.

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FTPA Joint Committee lays down marker for the future

The Fixed-term Parliaments Act 2011 placed a legal obligation on the Prime Minister to make arrangements for a committee to review the legislation before the end of 2020. That committee was duly created, and published its report last month. Robert Hazell and Meg Russell offer a summary of the committee’s report, which was rightly critical of the government’s draft repeal bill, but argue that the committee ‘ignored’ the weight of the evidence in some key areas.

On 24 March the parliamentary Joint Committee to review the Fixed-term Parliaments Act 2011 (FTPA) published its report. The committee was established last November under section 7 of the FTPA, which required the Prime Minister in 2020 to make arrangements for a committee to review the operation of the Act, and if appropriate to make recommendations for its amendment or repeal. The review was carried out by a Joint Committee composed of 14 MPs and six members of the House of Lords, and chaired by former Conservative Chief Whip Lord (Patrick) McLoughlin.

The government pre-empted the review by publishing a draft FTPA (Repeal) Bill a week after the committee was established. The Conservative and Labour manifestos in 2019 had both contained a commitment to get rid of the FTPA. As a result the committee focused a lot of attention on the government’s draft repeal bill. But the report devotes almost equal space to the FTPA and how it might be amended, in case parliament prefers to go down that route, now or in the future.

There was clear interest in the committee for retaining but improving the FTPA. The government had a bare partisan majority (11 out of 20 members), and not all Conservative members supported the government line. But the committee managed to avoid any formal votes, instead referring in parts of the report to the majority or minority view. On some key issues the majority view went against the weight of evidence received.

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Parliaments and the pandemic

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 .

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Boris Johnson and parliament: misunderstandings and structural weaknesses

On 21 January Unit Director Meg Russell appeared on a panel with two former Conservative Chief Whips, reflecting on Boris Johnson’s troubled relationship with parliament as Prime Minister. In this post she presents her central arguments – that the Johnson government in its early months has seemed to demonstrate some basic misunderstandings about parliament and its role; but also the government’s behaviour has highlighted some of parliament’s key weaknesses.

In early September 2020 I wrote a blogpost on Boris Johnson and parliament, which documented 13 unhappy episodes in 13 months. I had originally aimed at producing a list of 10 such episodes, but found that there was just too much material. Some of the incidents were obvious – such as the attempted prorogation the previous September, ultimately ruled unlawful by the Supreme Court. Others have continued to bubble along unhappily in the subsequent months – including the persistent refusal by Leader of the House of Commons Jacob Rees-Mogg to provide time for MPs to debate and agree proposals from the Procedure Committee to allow them to work virtually during the pandemic (frequently covered on this blog – see here and here), and the sporadic suggestions from government sources that the House of Lords should move to York. Some incidents were more obscure, but worth recalling for the record – such as Downing Street’s attempt to impose Chris Grayling as chair of the Intelligence and Security Committee (which rather dramatically backfired).

Of course that post was written five months ago, and the list continues to gets longer. It predated, for example, the dramatic showdown with former Conservative leaders over the government’s Internal Market Bill. It predated the announcement of the new Christmas lockdown rules during Commons recess, and the government’s refusal to allow a recall to debate them – despite protests by numerous Conservative backbenchers. It noted Johnson’s excessive first round of Lords appointments, but not his second within six months – both in clear breach of the Lord Speaker’s hardfought attempts to control the size of the chamber. It predated Johnson’s overruling of the House of Lords Appointments Commission’s recommendations on propriety, for the first time by any Prime Minister in the Commission’s 20-year existence.

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