Coronavirus and the hybrid parliament: how the government moved the Commons backwards on remote participation

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Image Credit: Return of the House of Commons rehearsal (CC BY 3.0) by UK Parliament

sir_david_natzler.smiling.cropped.3840x1920.jpgIn 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. Continue reading

Remote sittings for Ireland’s parliament: questionable constitutional objections

david_kenny_02.jpg_resized.jpg (1)As a result of the temporary measures taken by the UK House of Commons, MPs as far away from London as Orkney have been able to contribute to parliamentary proceedings remotely. The same has not been true of Ireland, where legal objections have been raised. David Kenny argues that those objections can be easily overcome and that there is no good reason why Ireland’s elected representatives should not be able to attend the Oireachtas remotely. 

Ireland’s recent general election, as well as producing deep political uncertainty, has produced several fascinating and strange constitutional questions: what happens when a candidate dies (not, it turns out, what the law clearly required). Can the Seanad (Senate) legislate when no Taoiseach (Prime Minister) has been appointed to nominate 11 of its members? What are the limits of the accountability of acting ministers?

The strange circumstances of the pandemic have thrown up yet another constitutional issue, one which is arising around the world: where and how can the legislature sit? With social distancing in a parliamentary chamber or committee room difficult, this has a profound effect on how the legislature can function at a time where the agglomeration of executive power in response to the crisis requires acute parliamentary oversight. 

At present, despite emergency legislation giving sweeping powers to the executive to combat COVID-19, neither house of the Irish parliament is meeting in anything other than the most limited form. For limited purposes, such as attempting to nominate a Taoiseach, a very large space such as Dublin’s Convention Centre can be rented to allow socially distant attendance from all 160 members of the Dáil (the equivalent of the UK’s House of Commons). But this is not intended to be a regular arrangement, and is not planned for other parliamentary activities, such as committee meetings. There are limited sittings in the Dáil Chamber, with a select groups of members in attendance, and meetings of a special COVID-19 Committee in the chamber also. It would seem that virtual/remote meetings would be essential to allow sufficient parliamentary oversight in these circumstances. But constitutional objections to this have been raised. Continue reading

Can analogue politics work in an era of digital scrutiny? The negative effect of COVID-19 on the informal politics of Westminster

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This week the House of Commons approved measures to conduct business in a semi-virtual form. These were necessary to ensure parliament can function during the coronavirus crisis, but as Greg Power explains, they will also involve the loss of some of the key elements of parliamentary life that enable effective scrutiny and party management. 

Parliament finally returned in semi-virtual form this week. While initial coverage has inevitably focused on the novel use of digital technology in the most analogue of institutions, underlying this are more important questions about whether parliament will be able to exert the same political pressure on government when its members are not physically present. 

Westminster is not alone in this task. Every other legislature around the world is looking for ways to meet and decide things when MPs cannot be in the same room, most of which seem destined to further increase the share price of Zoom. Yet, as most parliaments are finding, whilst adapting the formal procedures is a relatively easy task, the politics is more complex.

For example, Brazil moved swiftly to change its rules to allow fully virtual plenary sessions, South Africa has introduced new systems for electronic submission of questions to ministers and many parliamentary committees have quickly moved to remote meetings. Other countries, like France, Ireland, Norway and Germany have reduced both the amount of business, and the number of people allowed in the plenary at any one time, along with other provisions for remote deliberations and questions. 

The UK has ended up with a similar combination of measures, but spats have already emerged in other countries about the politics of such changes. Reducing the number of MPs in the chamber at any one time for questions seems appropriate, provided those numbers reflect the party balance. But who decides which MPs get to turn up? And if parliamentary business is being reduced, what takes priority? This is the traditional territory of the party whips, who will relish the ability to further influence the tone and contents of such public debates. Continue reading

Proposals for a ‘virtual parliament’: how should parliamentary procedure and practices adapt during the coronavirus pandemic?

RuthFox.084_square.1.jpgmeg_russell_2000x2500.jpgParliamentary scrutiny is essential to checking and legitimising government decisions. But the coronavirus crisis, during which government has been granted unprecedented powers, creates obvious challenges for parliament. Ruth Fox and Meg Russell argue that parliamentary change during the crisis must follow three core principles: first, parliament should go virtual insofar as possible; second, it should adapt its procedures accordingly, prioritising the most critical business; third, decisions about these changes should be open and consultative — to avoid the risk of a government power grab — should be strictly time-limited, and be kept under regular review.

Parliament has an essential role as the guardian of our democracy. But the coronavirus pandemic poses a huge and unprecedented challenge: how can parliamentarians conduct their core constitutional duties of holding the government to account, assenting to finance, passing legislation, and representing their constituents, when we are all required to adopt rigorous social distancing and, wherever possible, work from home? 

At a time when the government has been granted emergency powers of a kind unparalleled in peacetime, and ministers are taking rapid decisions that could shape our economy and society for a generation, democratic oversight is vital. Adversarial party politics take a back seat in a time of national crisis, but parliament’s collective responsibility to hold the executive to account remains. Hence the many calls – from both within and without parliament – for a ‘virtual’ legislature to ensure adequate scrutiny of the government’s decisions, and to maintain other essential time-sensitive work, while complying with public health requirements. 

As yet, however, there has been little detailed debate about how a ‘virtual parliament’ should operate. Parliament cannot work as normal, so what broad issues must it address in deciding how to work differently? 

This post identifies and argues for three core principles:

  • In the interests of safety, and to set a national example, parliament should operate as far as possible virtually, rather than accommodating continued physical presence at Westminster.
  • Parliament should not pursue ‘business as usual’ but should make more radical changes, identifying and prioritising essential business. 
  • Parliament’s crisis arrangements should be based on wide and transparent consultation with members to maximise support. ‘Sunsetting’ should be used to make clear that they are temporary and create no automatic precedent for the post-crisis era. 

In the UK, the government already has much greater control of the way parliament – particularly the House of Commons – operates than in many other countries. Any crisis arrangements must ensure fair representation for all members and parties; and the crisis and parliament’s response to it should not become a pretext to shift power further towards the executive and party managers.   Continue reading

Brexit and parliament: treaties beyond the EU

In the latest extract from our joint report on Parliament and Brexit, Jill Barrett argues that the need for effective scrutiny of post-Brexit trade deals is high, and that parliament needs to develop mechanisms to better scrutinise the deals made by the government.

Leaving the EU means the UK is not only leaving the EU trading bloc and negotiating a new future relationship with the EU, but also leaving its global network of trade treaties – which consists of 41 trade agreements covering 72 countries. All of these will cease to apply to the UK at the end of the transition period (31 December 2020, unless extended by agreement). The UK’s trade with other World Trade Organization (WTO) member countries will then take place on WTO terms, except where there is a new trade agreement in place.

The UK government is seeking to ‘roll over’ the 41 existing EU agreements, by negotiating similar new agreements with the third states concerned. So far, only 19 replacement agreements have been signed and a further 16 are ‘still in discussion’. In some cases, notably Japan, the other state is not willing simply to replicate the terms that it has with the EU, but is seeking further concessions from the UK. Achieving a deal in all cases by the end of 2020 will be extremely challenging, and some may well take considerably longer.

Now the UK has an independent trade policy it can also seek new trade relationships with states that are outside of the EU’s treaty network. The government has announced that its priority is to negotiate bilateral trade treaties with the USA, Australia and New Zealand, and one may expect the next phase to include negotiations with major emerging economies such as China and India. All of these will raise matters of intense interest to parliament and the public.

What is parliament’s role in relation to the making of treaties? Treaties are negotiated, adopted, signed and ratified by the government using royal prerogative (executive) powers. In legal terms, parliament has two distinct roles. First, the government is obliged to lay a new treaty before parliament for 21 sitting days prior to ratification, under the Constitutional Reform and Governance Act 2010 (CRAG). In theory, this gives parliament the opportunity to scrutinise the treaty and object to ratification, by passing a resolution. An objection by the House of Commons (but not by the Lords) would block ratification. Secondly, if implementation of the treaty requires new legislation, parliament has the power to pass or defeat that legislation (or amend it, if it is a statute). If essential implementing legislation is blocked, this would normally stop the government ratifying the treaty. Continue reading

Parliament and COVID-19: the Coronavirus Bill and beyond

sir_david_natzler.smiling.cropped.3840x1920.jpgThe Coronavirus Bill introduced by the government last week will be debated by parliament in circumstances where it is harder for both Houses to meet, scrutinise and vote than at any time in recent memory. How should parliament respond to both the legislation and the crisis that prompted it? Former Clerk of the Commons David Natzler outlines the key issues facing MPs and peers as they consider how parliament should function in the coming months.

Just as the dust is settling on the first phase of the Brexit marathon, and the Constitution Unit and others are examining the role played by Parliament over the past three years, COVID-19 presents itself wholly unexpectedly as a challenge to all the nation’s institutions. Parliament was settling in for five years of single-party majority government and it looked as if, Brexit deal aside, it would be relatively smooth sailing. Now parliament faces the challenge of fulfilling its role in a COVID-19 environment.

The Coronavirus Bill

The government published its Coronavirus Bill on Thursday 19 March, having already revealed the policy proposals to which it gives effect in its Action Plan (published on 3 March) and a more detailed prospectus (published on 17 March). The bill has 87 clauses and 27 Schedules, totalling 321 pages of legislative text. The Explanatory Notes run to 73 pages, and there is a 31-page long memorandum on the implications for human rights.

Commons scrutiny

The bill is to be debated in the House of Commons on Monday 23 March for a maximum of six hours: up to four hours on second reading and two hours for committee of the whole House and remaining stages. The House decided on 18 March to disapply the EVEL Standing Orders in relation to the bill, so it will be spared the rigmarole of forming a Legislative Grand Committee.

It has been possible to table amendments since the bill was introduced. Four amendments and four new clauses were tabled on the day of its publication, and more may be expected in so-called ‘manuscript’ form on the day. They mainly address the issue of for how long the Act will be in force. The bill establishes that its provisions will apply for two years, with provisions for individual powers to be ‘sunsetted’ earlier or indeed revived if it falls due to a sunset clause. It also provides for a general debate in both Houses after one year. Both the official opposition and a cross-party group are proposing systems of six-monthly debate and renewal only if the House so decides. It is perhaps significant that the Irish parliament last week passed a similar bill and as a result of amendment decided that it should last for one year. This is an area where some change is likely; both the Scottish Government, and independent human rights organisations such as Liberty, have expressed concerns about the sunset and scrutiny provisions as currently drafted. Continue reading

Has parliament just got boring? Five conclusions from the passage of the EU Withdrawal Agreement Act

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The 2019 parliament has passed its first statute: the European Union (Withdrawal Agreement) Act 2020. Unusually for a major constitutional bill it was approved unamended. Does this demonstrate the shape of things to come, with an enfeebled parliament under Johnson’s majority government? Lisa James and Meg Russell argue that the WAB was not a typical bill, and the circumstances were far from normal. Even under majority government parliament is far from powerless, and the full dynamics of the new situation may take some time to play out.

1. The Act passed easily – but the circumstances were unusual

The EU (Withdrawal Agreement) Act 2020 (the WAA or – before it gained Royal Assent – the WAB) passed with remarkable ease and speed. A 100-page bill implementing the Withdrawal Agreement, it was packed with detailed provisions on everything from citizens’ rights to the operation of the Joint Committee. Nonetheless, following just 11 days’ scrutiny, it passed wholly unamended: five government defeats in the Lords were swiftly overturned when the Bill returned to the Commons.

Comparison with a key previous piece of Brexit legislation – illustrated in the table below – shows how uneventful the WAB’s passage was in relative terms. The EU (Withdrawal) Act 2018 was similar in scope and complexity, but had a far rockier passage. During 36 days’ scrutiny the government was defeated 16 times, including a rare defeat in the Commons. By the time it passed, it had been so heavily amended – by backbenchers, opposition parliamentarians and ministers themselves – that it was 63% longer than when first introduced.

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Continue reading

Dramas at Westminster: select committees and the quest for accountability

iOpQqpWl_400x400.jpgNow that the government has a secure majority in the Commons, the role of select committees in scrutinising its work will be crucial. But how do select committees operate, what makes them tick and how effective are they? Drawing on the findings of his new book, Marc Geddes argues that if we want to understand the effectiveness of scrutiny, we cannot underestimate the role of beliefs and practices in mediating accountability in legislatures.

How do MPs make sense of their scrutiny work? Accountability is one of three core functions of legislatures (the other two being law-making and representation), yet we know remarkably little about how MPs interpret, or seek to carry out, scrutiny work. Those MPs that do take it seriously often join select committees. They are seen as the main vehicles of accountability in the House of Commons, made up of a small group of MPs to consider policy questions. Traditionally, there is one committee per ministerial department, as well as additional cross-cutting ones (such as on public administration and constitutional affairs). Committees normally consider policy issues through an evidence gathering process that may include written, as well as oral, evidence, before then publishing a report with recommendations for action (very often these reports are published consensually, with agreement from all the committee’s MPs). Select committees are seen to be influential and have been widely celebrated, especially in 2019, which marked the 40th anniversary since their present-day incarnation. While they are seen as fundamental to good scrutiny and we know that they can be influential, I wanted to examine select committees from a different vantage point, asking why MPs join committees and how they make sense of their role. This culminated in a book, Dramas at Westminster. What did I find? 

The core argument of my book is that there is no easy answer or unifying theme to understand what ‘scrutiny’ actually means. Rather, MPs’ interpretations of the concept are wide-ranging and, while MPs’ beliefs often blend well together to create effective means to hold the executive to account, their ideas about select committee work can also contrast and diverge from what others might consider to be ‘good scrutiny’ – or, in fact, ‘scrutiny’ at all. For example, for some, scrutiny is about holding the government’s feet to the fire and they would only regard scrutiny as being successful if they have blown a minister off-course; for others, scrutiny is about transparency, i.e. better understanding why a minister might have taken a particular decision. I argue that these different interpretations create different ‘performance styles’; behaviours that MPs can adopt when they enact their scrutiny role – much like in a theatre or play. To illustrate this point, I identify six styles: specialists, who often form the core of committee business and attempt to analyse aspects of the policy area; lone wolves, who take their passions so far that they make their case irrespective of other committee members or the committee’s remit; constituency champions, who look at scrutiny through the prism of how it can benefit local causes; party helpers, who seek to protect their party interests on the committee; learners, who use their membership to better understand a policy issue; and absentees, who – as their name suggests – are largely absent from substantive committee work.

These styles are not fixed, with many MPs changing the role they adopt based on particular circumstances. For example, it might be the case that an MP is a specialist in one aspect of a committee’s work but not another, and so acts as specialist or learner accordingly; in other areas of a committee’s work, it might directly touch on their constituency while in a hearing with the secretary of state, or they cannot help themselves and use their party allegiance to poke fun at the government. It is worth thinking about performance styles to understand the wider dynamics of committee hearings and evidence processes. Doing this detailed analysis will help us to better understand why a committee will come to certain conclusions but might avoid other recommendations. Most importantly, the performance styles that I have identified here are designed to be illustrative rather than definitive, drawing on the most recurring themes and behaviours that I found during my fieldwork.  Continue reading

This prorogation is improper: the government should reverse it

meg_russell_2000x2500.jpgalan.jfif (1)professor_hazell_2000x2500_1.jpgBoris Johnson’s prorogation announcement has generated widespread criticism, and will be hotly debated when MPs return today from their summer break. Meg Russell, Alan Renwick and Robert Hazell argue that the decision to suspend parliament for five weeks was an improper use of executive power, sets dangerous precedents, and undermines fundamental principles of our constitution. It should therefore not proceed. MPs may seek to block it, and so may the courts, but the preferable route would be for the government to recognise its mistake and reverse it.

MPs return to Westminster today after the five-week summer recess in deeply unusual and worrying circumstances. Last week Prime Minister Boris Johnson, who has faced just one day of parliamentary scrutiny since taking office on 24 July, triggered a prorogation of parliament, set to last another five weeks. Particularly given the Brexit deadline of 31 October, this has caused widespread consternation: among opposition parties, senior Conservatives (such as former Prime Minister Sir John Major, and Lord Young of Cookham who served for 24 of the last 40 years on the frontbench under a succession of Conservative leaders), plus constitutional experts, and the wider public. MPs must now decide how to respond, and meanwhile the action is being challenged in the courts. In this piece we argue that the prorogation was improper, that it sets dangerous precedents, that it is contrary to our constitutional traditions, and that there is still time for the government to defuse the crisis by reversing it.

The rights and wrongs of prorogation

At one level, parliamentary prorogation is entirely uncontroversial. By routine, a short prorogation usually occurs each year between the end of one parliamentary session and the start of the next – ahead of a new Queen’s speech. In addition, a short prorogation often occurs before parliament is dissolved for a general election, in order to regulate the timing and ensure that election day takes place on a Thursday. The recent practice and procedure of prorogation is set out clearly in an excellent briefing from the House of Commons Library.

Discussion of potentially more sinister uses of prorogation began during the Conservative leadership contest, when Dominic Raab (now Foreign Secretary) refused to rule out proroguing parliament to force through a ‘no deal’ Brexit in the face of opposition by MPs. This was roundly condemned by others in the race at the time: being described by Sajid Javid (now Chancellor of the Exchequer) as ‘trashing democracy’, and Michael Gove (now effective Deputy Prime Minister) as ‘a terrible thing’. Andrea Leadsom (now Secretary of State for Business, Energy and Industrial Strategy) commented that ‘I don’t think prorogation is the right thing to do and I don’t think that a Prime Minister would choose to do that’.

Following Johnson’s prorogation announcement, ministers have instead suggested that this is absolutely standard procedure. On Thursday’s Today programme, the Leader of the House of Commons, Jacob Rees-Mogg, claimed that it was more or less what happened every year, and that it was ‘because of the 3 ½ weeks of conference recess [that] it is five weeks in total’. Hence Rees-Mogg accused critics of the move of expressing ‘confected anger’.

But such suggestions of normality are disingenuous, seeking to exploit public confusion between the different means by which it can be decided that the Commons will not sit. It is important to distinguish between the following three things:

Prorogation brings all parliamentary business to a complete stop. Unless rescued by a government motion, bills that are before parliament fall and must start their passage again. Importantly, the decision to prorogue lies wholly in the hands of the government – through issuing advice to the Queen, which she is duty bound to accept. Usually a prorogation lasts for just a few days. Research by the House of Lords Library shows that a five-week prorogation will be the longest since 1930.  

Parliamentary recess is very different. Recess occurs periodically throughout the year, to accommodate holidays and, usually, a break for the party conferences. However, the decision to adjourn for recess lies with MPs. The motion for the 2019 conference recess had not yet been laid, and the looming Brexit deadline meant that there was increasing pressure from MPs to cancel or cut this recess short. Crucially, it is also possible for some parliamentary business – such as meetings of select committees – to continue during recess, and the progress of bills is not halted.

Dissolution of parliament in contrast occurs before a general election. Under the Fixed-term Parliaments Act, the decision to dissolve parliament again lies with MPs themselves – and is taken by a parliamentary vote. Dissolution does not simply suspend parliament: as the name suggests, it dissolves parliament in preparation for the creation of a new one through a general election.

Hence either recess or dissolution, sometimes combined with a short prorogation, frequently result in parliamentary breaks which last a number of weeks. But in both of these cases MPs take the decision to break themselves. Had ministers genuinely wanted to hold a ‘routine’ prorogation to facilitate a Queen’s speech, as they claim, they could easily have proposed one lasting a few days, and left the decision to MPs regarding whether to take the conference recess. Instead, they have proposed the longest prorogation for 90 years, using executive power to shut down parliament in the midst of a crisis – seemingly to avoid the risk that MPs would veto the conference recess, and perhaps use the time available defeat the government on other things. As suggested in the previous comments of Conservative leadership contenders, that represents an improper use of executive power. Continue reading

Pressures to recall parliament over Brexit during the summer seem likely – what if they occur?

meg_russell_2000x2500.jpgIMG_20190723_020219.jpg (1)A new Prime Minister is expected to be appointed tomorrow, the day before MPs break up for the summer recess. With just 14 weeks remaining before the current Article 50 deadline, the Commons is then not due to meet for almost six weeks. This creates some very obvious scrutiny gaps. Meg Russell and Daniel Gover suggest that pressures for a Commons ‘recall’ during the summer recess seem likely, but that this will revive difficult questions about who can, and should be able to, recall MPs.

On Thursday, MPs are due to leave Westminster for the summer recess. Yet, barring mishaps, a new Prime Minister is expected to be installed in Downing Street only the preceding day, making immediate parliamentary scrutiny of the new government’s key decisions all but impossible. An added pressure, of course, comes from the Brexit context. The current Article 50 deadline for the UK to depart the EU is 31 October, but parliament is due to remain closed for around half that time – for almost six weeks initially, until 3 September, followed by another break for the party conferences. During this period, calls for parliamentary scrutiny of the new government – most obviously over Brexit – seem very likely to grow. 

In this post we examine the pressures that may build for a recall of parliament during the summer, and what mechanisms exist for MPs if they do. Crucially, a formal Commons recall can only be initiated by the government – which may push parliamentarians towards innovative solutions. In the longer term, pressures for reform of the recall process may well be revived. 

Why there may be pressures for recall 

Demands for the Commons to be recalled from a recess are not unusual, as discussed below. However, they seem especially probable this year. MPs are set to break up just one day after the new Prime Minister takes office, while the tensions over Brexit and how he intends to handle this (particularly if the winner is Boris Johnson) are running high.

An initial challenge, raised in another recent post on this blog, is whether it will even be possible to know that the new Prime Minister and his government enjoy the confidence of parliament. The first action of a new premier is to appoint a cabinet, followed by junior ministers. Within the 24 hours available to the House of Commons, this process may not be complete. As the Commons’ confidence depends not only on the personality of the Prime Minister, but the personalities and balance of the whole government, this could well be brought into doubt. Additionally, there will be very little time under current plans for parliament to quiz the Prime Minister on his Brexit strategy. A statement on Wednesday afternoon or Thursday is possible, but not assured – and if MPs are dissatisfied there will be very little time to respond. The immediate start to the recess hence already looks problematic, and MPs may depart amidst claims that the new Prime Minister is dodging scrutiny. Continue reading