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. 

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‘Our travel difficulties haven’t been well-understood by the Government’: life as an MP from the smaller opposition parties during the pandemic

Parliament has been forced to adapt its procedures and practices to the new environment created by the COVID-19 pandemic. Here, Louise Thompson and Alexandra Meakin outline how smaller parties have been disproportionately affected by the decisions that the government has made about how parliament should operate during the pandemic.

Legislatures across the world have had to adjust to new ways of working during the coronavirus pandemic, and the UK parliament is no different. All 650 MPs have seen their role transformed as they have adjusted to virtual and then hybrid proceedings in the House of Commons, remote and then proxy voting, the loss of the informal spaces for chats and networking, and moving constituency surgeries and meetings online. For a particular subsection of MPs, however, the last year has brought even more challenge and complexity. We argue that the changes to proceedings and operation of the Commons since March 2020 have disproportionately affected MPs from the smaller opposition parties, highlighting a failure in the decision-making structure to sufficiently take into account the circumstances of these MPs. This failure, we contend, risks delegitimising the Westminster parliament in the eyes of people living in the devolved nations.

The typical view of the House of Commons, with the government on one side and the official opposition on the other, reflects the traditional two-party dominance on the green benches. But if you look to the opposition benches, you will see a growing number of MPs representing smaller parties. Some 73 constituencies (that’s 11% in total) are now represented by parties outside this duality. The smaller parties range in size, from the 47 SNP MPs, to the sole representatives of the Alliance Party and Green Party. They differ politically too: the pro-EU Lib Dems and the Brexiteer Democratic Unionist Party share the same small-party benches. But regardless of size or ideology, all small parties and their MPs must deal with an institution designed, both physically and in its rulebook, with an emphasis on the two larger parties, something that this last year has demonstrated well.

The constituencies represented by the 73 small-party MPs are overwhelmingly concentrated outside of England, with 89% located in Northern Ireland, Scotland and Wales. Even in normal times, travelling to Westminster for these MPs almost invariably involves far longer and more complex journeys than for members representing English constituencies. The pandemic has exacerbated this, with public transport (literally the only option for MPs in Northern Ireland or the Scottish islands) cut drastically. In June 2020 the number of flights from Belfast to London, for example, fell from 12 a day to just one. Virtual participation in the Commons at this time was severely restricted, but the timing of the flights and difficulties securing tickets meant that MPs from Northern Irish constituencies were often unable to be present in the Commons chamber for the first items of business on a Monday or stay for business on Thursdays without being stuck in London (and away from their families and caring responsibilities) all weekend. For one Urgent Question on abortion in Northern Ireland, Alliance MP Stephen Farry had to ask another MP (the Scottish Liberal Democrat, Wendy Chamberlain) to speak on his behalf as he was unable to travel to Westminster at short notice (at this date, no virtual participation was allowed).

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Taking back control: why the House of Commons should govern its own time

Various high-profile tensions between parliament and government – including over Brexit and COVID-19 – have focused on what the House of Commons can discuss and when. In a major new report published today, Meg Russell and Daniel Gover highlight the problems that result from the government’s default control over the Commons agenda, and make proposals for reform. They argue that the fundamental principle guiding House of Commons functioning should be majority decision-making, not government control. 

The last few years have been turbulent ones in the House of Commons. First over Brexit, then over COVID-19, tensions between government and parliament have sometimes run exceptionally high. This was perhaps predictable during 2017-19 under minority government, but has remained the case subsequently despite Boris Johnson’s 80-seat Commons majority.

A common theme throughout this period – as highlighted in a major new report, published today – has been frustration about the extent to which the government decides what MPs can discuss and when. Brexit saw headlines about MPs ‘seizing control’ of the Commons agenda (some suggesting that this marked the ‘end of politics as we know it’), followed by worldwide media attention on the government’s attempt to prorogue parliament (ultimately overturned by the Supreme Court). During the COVID-19 pandemic, complaints have focused on parliament’s limited opportunities to scrutinise ‘lockdown’ restrictions, and ministers’ resistance to MPs’ ability to participate in the Commons virtually. On all of these matters, MPs have struggled to secure debates on their own priorities at key moments – despite the Commons’ status as the senior chamber in a supposedly ‘sovereign’ parliament. Even when lacking a Commons majority, ministers have generally been able to exercise agenda control.

Controversies about government control of the House of Commons are nothing new. At one level, they are part of a tussle for dominance that dates back centuries. In more recent times, they were a key focus of the Select Committee on the Reform of the House of Commons (generally referred to as the ‘Wright Committee’) which reported in 2009. It recognised ‘a feeling that the House of Commons, as a representative and democratic institution, needs to wrest control back over its own decisions’, and made a series of recommendations to achieve this. Some – including the election of select committee members and chairs, and establishment of the Backbench Business Committee – were implemented. But others were not. The failure to resolve these issues helped fuel the tensions of recent years.

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Five years of ‘EVEL’

In the wake of the devolution settlements of the Blair years, political pressure to answer the ‘West Lothian Question’ persisted. In 2015, the proposed answer was ‘English Votes for English Laws (or EVEL). Today, on its fifth anniversary, Daniel Gover and Michael Kenny assess how EVEL has worked, during one of the most volatile political periods in living memory.

On 23rd October 2015, the ‘English Votes for English Laws’ (or EVEL) procedures came into force in the House of Commons. Introduced by David Cameron in the aftermath of the Scottish independence referendum, these new rules were designed as an answer to the notorious ‘West Lothian Question’ – the late Tam Dalyell’s resonant enquiry about why Scottish, Welsh and Northern Irish MPs should continue to be able to vote on matters that only affected England after devolution, while MPs in England were not able to reciprocate in devolved areas.

When EVEL was introduced, the procedures were sharply criticised by opponents. For some, the reform would not only be logistically difficult to implement – likely to be ‘incomprehensible’ to MPs and the public alike – but would also threaten the UK’s constitutional makeup. In particular, it was argued that EVEL would establish ‘two classes of MP’ at Westminster, undermining the ability of non-English MPs to represent their constituents’ interests. Others, meanwhile, criticised the procedures as too tame, and falling short of providing adequate representation to England.

The five-year anniversary provides an opportune moment to review how this contentious reform has fared in practice. Yet the wider territorial politics of the UK have also undergone significant changes in the intervening period. The questions to which these complicated rules were a response have become ever more pressing, but whether EVEL can provide a sustainable response to the increasingly fraught question of English devolution is increasingly doubtful.

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MPs are right. Parliament has been sidelined

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.

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