Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.
The marginalisation of the House of Commons under Covid has been shocking; a year on, Parliament’s role must urgently be restored. This briefing highlights five ways in which the government’s approach to the House of Commons during Covid has marginalised MPs. TEST
Dr Ruth Fox
Director , Hansard Society
Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.
In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.
In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.
Professor Meg Russell FBA
Director , The Constitution Unit, University College London
Meg Russell is Professor of British and Comparative Politics and Director of the Constitution Unit. She leads the Unit's research work on parliament, and is currently a Senior Fellow with the ESRC-funded UK in a Changing Europe programme.
Meg has worked closely with policy makers throughout her career. Before joining UCL she had worked in the House of Commons and for the British Labour Party. In 1999 she was a consultant to the Royal Commission on Reform of the House of Lords and from 2001-03 was seconded as a full time adviser to Robin Cook in his role as Leader of the House of Commons. She has acted as an adviser to the Arbuthnott Commission on boundaries and voting systems in Scotland, the House of Lords Appointments Commission, the Select Committee on Reform of the House of Commons ("Wright Committee"), the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) and the Lord Speaker's Committee on the Size of the House (of Lords). She has regularly given evidence to parliamentary committees, both in Britain and overseas.
Meg sits on the editorial boards of the journals Political Quarterly and Parliamentary Affairs. She is also a former Academic Secretary of the Study of Parliament Group. In 2006 Meg was awarded the Political Studies Association's Richard Rose prize for contribution by a younger scholar to the study of British politics. She was promoted to Reader in 2008 and to Professor in 2014. In 2020 she was elected a Fellow of the British Academy.
Dr Joe Tomlinson
Research Director , Public Law Project
Joe's work focuses on administrative law and justice. Since 2017 he has been Research Director at the Public Law Project—a national legal charity. His research has been cited by the UK Supreme Court and widely relied upon in significant public interest litigation, including R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland  UKSC 41, RR v Secretary of State for Work and Pensions  UKSC 52, and JCWI v The President of the Upper Tribunal (Immigration and Asylum Chamber)  EWHC 3103 (Admin).
He received his LL.B (Dean’s Award) and PhD (President’s Medal) from the University of Manchester and completed the bar course as Queen Mother’s Scholar (Middle Temple). He held lectureships at King’s College London and the University of Sheffield and visiting positions at Melbourne Law School, Osgoode Hall Law School, and UCL Department of Political Science. Earlier in his career, he was a Trainee in President Baudenbacher’s Chambers at the EFTA Court and Legal Assistant to Gerard McDermott QC.
Dr Ronan Cormacain
Senior Research Fellow , Bingham Centre for the Rule of Law
Ronan is a Senior Research Fellow at the Bingham Centre for the Rule of Law, British Institute of International and Comparative Law. He is leading the Rule of Law Monitoring of Legislation Project. The aim of this project is a systematic analysis of all Government Bills to assess whether they comply with Rule of Law principles.
He was called to the Bar of Northern Ireland, has an LLM in Human Rights from Queens University Belfast, and an LLM from the University of London in Advanced Legislative Studies. His PhD research was on the interaction of legislative drafting principles and the Rule of Law. He has lectured on legislation, and public law at the University of London, and City, University of London. He is an editor at the journal Theory and Practice of Legislation and has widely published on the subject of legislation and the Rule of Law.
Ronan has been a practicing consultant legislative counsel for 18 years. He drafts legislation on behalf of clients all over the world. Primarily this work is within Commonwealth jurisdictions, and includes work for the Northern Ireland Assembly, Northern Ireland Law Commission, Welsh Assembly Government, the Westminster Parliament and official bodies in British Overseas Territories and Crown Dependencies.
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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.
The Coronavirus Act 2020 made major changes to UK law, including a relaxation of normal safeguards on official action. But it was passed following just one day’s scrutiny in the Commons. The Act’s powers are subject to six-monthly renewal. But in the year since it was passed, ministers have provided just five hours debating time for MPs to consider the on-going measures. Three and a half of these were spent debating the second renewal motion last month. But two further measures were also debated: a motion to approve regulations implementing the ‘roadmap’ out of lockdown, and a procedural motion to extend the temporary Standing Orders for MPs’ virtual participation and proxy votes (discussed below). Taken separately, these three motions would have been subject to more cumulative debating time. By rolling them up into one debate, the government severely limited MPs’ scope to comment on three very different, but hugely important, questions. The debate was so oversubscribed that MPs were subject to a speech limit of four minutes.
Over 400 Coronavirus-related Statutory Instruments (SIs) have been laid before Parliament since the pandemic began. All have been subject to little or no scrutiny, a situation described as ‘totally unsatisfactory' by the Commons Speaker. Although some SIs make relatively innocuous changes, others truly are draconian: shutting down businesses, forcing people to stay at home, imposing hotel quarantines or mandatory testing. Alongside this, the police have been given huge enforcement powers including fixed penalty fines of up to £10,000 and powers to enter private premises at any time of the day or night. An unusually high share of Covid SIs have been subject to the ‘made affirmative’ scrutiny procedure – meaning they became law before being scrutinised, and require only retrospective parliamentary approval. Many of these derived from the government’s use of the urgent power in the Public Health (Control of Disease) Act 1984. This mechanism, which severely undermines accountability, has been described as ‘addictive’. Its excessive use (for nearly a quarter of all Covid-related SIs) has included circumstances – most notably for mandatory face coverings – which were not justified by a lack of time, as policy had previously been trailed publicly for weeks. The government’s casual approach to the scheduling of debates on SIs means they have often been in force for weeks before MPs could consider them. A succession of lockdown regulations saw MPs debating and approving SIs even after they had been amended by a later instrument. Some SIs were revoked before being debated at all. Some have come into force just an hour or less after being made. Frequent errors that need to be corrected, the lack of Impact Assessments, and discrepancies between law and guidance have all compounded scrutiny problems for MPs, but also crucially for the wider public.
Westminster has one of the weakest systems in the world for parliamentary influence and control over public spending – which has been greatly exacerbated by the pandemic. Unlike in several other parliaments, no special oversight measures have been introduced to deal with the huge spending pressures posed by the crisis. For financial year 2021-22 the annual Contingencies Fund Act – which went through the Commons in one day on 24 March – increased the contingency limit for spending without prior parliamentary approval from the normal 2% of total spending in the previous financial year to 12%. Before this, the 2020 Act had raised it from 2% to an extraordinary 50%. Normally, a Contingencies Fund Bill is an uncontroversial technical measure. But the more that is spent via the Contingency Fund, the less has to be approved subsequently via the Estimates process. In total, the House of Commons Library estimates that ministers could spend up to £469 billion in 2021-22, prior to parliamentary approval of departmental spending plans.
Initially, under a government motion agreed on 22 April 2020 and renewed on 12 May, MPs unable to attend Westminster due to the pandemic could participate in all proceedings virtually, including debates on legislation. In a particularly appalling moment for parliamentary accountability – and despite protest from the House’s own Procedure Committee, opposition leaders and affected MPs – the government unilaterally announced that these provisions would end on 20 May, refusing time for a debate allowing them to be renewed.
In June, under pressure from MPs and the Procedure Committee, virtual participation rights for ‘clinically vulnerable’ or ‘clinically extremely vulnerable’ members were restored for ‘scrutiny’ proceedings (e.g. oral questions and ministerial statements) only. Despite repeated sharp criticism from senior government backbenchers, some astonishing cases of exclusion, and critical reports from the Procedure Committee, virtual participation rights in legislative proceedings were not restored until 30 December. Hence, at ministerial insistence, the most medically vulnerable MPs were locked out of participation in key Commons business for a shocking 224 days.
Few people outside Westminster realise that nearly all MPs are now voting by proxy rather than in person, with just a handful casting their own votes. On the last sitting day before Easter, 595 out of 650 MPs were certified as eligible for proxies. Those 595 votes were held by just 18 nominated people – primarily party whips. A single government whip was responsible for casting 329 votes and one opposition whip for 173. The scheme requires the nominated proxy to follow instructions from those whose proxy they hold, meaning whips have sometimes cast votes against the party line. But mass proxy votes clearly undermine the decision-making process, and MPs’ representative roles, if they have to decide how their vote should be cast prior to a debate – without for example knowing which amendments have been selected. If hundreds of MPs make such choices beforehand, debate becomes mere theatrical window-dressing. Meanwhile, some members could be nervous of instructing a whip to vote against the line; in tight votes, this could prove problematic. As the Chair of the Procedure Committee has noted, the system is ‘sub-standard ... and is possibly open to abuse’. Use of mass proxies is also absurd, because parliamentary officials designed a secure voting app – which was originally used by MPs but abandoned, again at ministerial insistence, in May 2020. Despite calls from members – including the chair of the Liaison Committee on behalf of select committee chairs, and the Procedure Committee – the government has consistently refused to give MPs a vote on reintroduction of the app. Meanwhile, it has been used in the Lords throughout the pandemic, largely without difficulty.
Individually, each of these five developments is shocking. Collectively, they amount to a fundamental undermining and exclusion of Parliament and its members from crucial decisions– on policy, spending, and the management of the House of Commons itself. Parliament traditionally sits at the heart of British politics. With lockdown hopefully now ending, it is essential to prioritise the full restoration of parliamentary democracy and MPs’ participation rights. There are real dangers that, over the last year, the government has become too comfortable with decision-making that evades parliamentary scrutiny. The excessive use of emergency procedures must end, key announcements should be made first to the House of Commons, and MPs must be able to debate and approve major policy changes well before they come into effect. Robust scrutiny is essential for transparency and democratic accountability, but also to ensure that policy itself is adequately robust. Further measures – crucially including any move to vaccine passports – need full oversight by MPs. Some difficulties during the pandemic have amplified problems at Westminster that had been visible for years. Improvements in the scrutiny of delegated legislation and financial matters have long been called for. Fundamentally, the extent to which the government controls the House of Commons agenda, and thereby its procedures, needs to be reduced. In exiting the current emergency situation, MPs’ decision-making powers in all of these areas badly need to be enhanced.
Cormacain, R & Fox, R & Russell, M & Tomlinson, J (2021), The marginalisation of the House of Commons under Covid has been shocking; a year on, Parliament's role must urgently be restored (Hansard Society, London).
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