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.
Submitting evidence before the House was to take further decisions on its Coronavirus arrangements, we decried the Leader of the House's decision to end hybrid proceedings and remote voting as "over-hasty, poorly thought-through, unwise and unnecessary". Our recommendations covered House business, risk management, delegated legislation and select committees.
Senior Researcher, Hansard Society
Dr Brigid Fowler
Senior Researcher, Hansard Society
Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.
After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.
Director , Hansard Society
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.
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Below is the full text of our submission (5 June 2020) to the House of Commons Procedure Committee for its inquiry into Procedure under coronavirus restrictions, and published by the Committee on 10 June 2020
The decision of 2 June to end hybrid proceedings and remote voting was regrettable. Particularly because of the way in which the decision was made and the practical consequences which it had on 2 June, it risks damaging the House’s public reputation and capacity to set an example for inclusive and effective working.
The Leader of the House’s arguments for the ending of hybrid proceedings and remote voting are poorly-grounded and the manner in which he sought to implement the policy was cavalier.
It has always been unclear to us why hybrid proceedings were restricted to just three sitting days per week after the system bedded in. Had the sitting days been extended it would have been possible to expand proceedings to a wider range of business.
We are concerned that the constraints of ‘social distancing’ on the parliamentary estate may result in some non-government business (e.g. e-petition debates) being curtailed. A continuation of hybrid proceedings could have supplemented – and could still supplement – the capacity of physical proceedings, helping to facilitate forms of business that it might be difficult to provide in a timely way on the estate for the foreseeable future.
A Grand Committee on Delegated Legislation has merits as an interim solution to potential resource pressures during the pandemic, but we repeat our longstanding call for a Commons Delegated Legislation Scrutiny Committee to sift and scrutinise all Statutory Instruments.
The option for select committees to be able to meet remotely should be retained even if and after pandemic-related risks have passed.
The Leader of the House has failed to set out any contingency plan to deal with circumstances as the pandemic persists. Provision should be made now for the House to continue to conduct business should a further national lockdown be necessary.
1. The House’s proceedings during the pandemic have been less satisfactory for all concerned than normal, pre-pandemic, proceedings. We share the ambition that the House should return to the full range of physical proceedings as soon as it is safe and logistically possible to do so. Parliament must play its part in starting to return to more normal operations as the country does so.
2. However, we deplore the failure of the House on 2 June to support the amendments to facilitate continued virtual participation and remote voting for those Members who, for reasons arising from the pandemic, are unable to travel to Westminster for the foreseeable future.
3. The decision by the Leader of the House apparently unilaterally to terminate virtual proceedings and remote voting was over-hasty, poorly thought-through, unwise and unnecessary.
4. Taking away, in such a cavalier fashion, the practical means that ensured all MPs could take part in proceedings and divisions in the middle of a pandemic crisis offends the principles of parliamentary democracy.
5. That a significant number of MPs – as a direct consequence of adhering to government or public health guidance, or of being subject to differentiated lockdown regulations affecting movement and travel in the constituent nations of the UK – were stripped of the means to perform some of their core duties as parliamentarians demonstrates the discriminatory and shabby nature of the endeavour.
6. In contrast, the Speaker and the Procedure Committee are to be commended for their efforts to find a practical and pragmatic solution to the unnecessary difficulties created by the Leader of the House.
7. We welcome the partial reversal of the Leader’s original plans, via the motions approved on 4 June, which means that Members who are unable to travel to Westminster may continue to participate virtually in Questions and Statements, and Members in ‘clinically vulnerable’ or ‘clinically extremely vulnerable’ groups will be eligible to apply for a proxy vote. We hope that in anticipation of the expiry of the temporary Orders on 7 July, should the status of the pandemic still inhibit some Members from travelling to Westminster, consideration will be given to expanding the scope of virtual participation to include legislative proceedings and to reinstating remote voting for all affected Members.
8. In a contribution jointly authored during the Easter recess with Professor Meg Russell of the Constitution Unit at UCL, we set out principles that should govern the House’s decisions on arrangements for the pandemic [^1] . These principles included:
“crisis arrangements should be based on wide and transparent consultation with Members to maximise support”;
they should be sunsetted “to make clear that they are temporary and create no automatic precedent for the post-crisis era”;
they “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”.
9. We believe these principles should continue to guide the House’s decisions as it considers its future arrangements.
10. We regret that the Leader of the House, seemingly driven by a randomly restrictive interpretation of the meaning of ‘temporary’ arrangements, failed to consult widely and transparently with Members about the future of virtual proceedings and remote voting, and did not ensure fair representation for all Members and parties in the decision-making process or the solution, the results of which may well end up shifting power towards the executive. Developments surrounding the ending of hybrid proceedings and remote voting were particularly regrettable and surprising because of the contrast with the way in which these arrangements were introduced in April, when – as we note further in the final section below – the process appeared to have been more consensual, inclusive and soundly-based.
11. The House has an important responsibility to demonstrate that a return to workplaces must and can be done in as safe a way as possible, in line with the guidance of public health and other authorities; with flexibility and review built in; and in an inclusive fashion, with due consideration of and consultation with Members and staff from all backgrounds and locations, and aiming to facilitate their continued safe and effective working while reaffirming that the House is a community of all its Members.
12. We regret that the events of 2 June will have sent a negative message to the public about the House’s attitudes to inclusion and diversity – particularly with respect to those with caring responsibilities, illness and disabilities. In doing so, it risks undermining much of the good work done and progress made by the House on these matters in recent years.
13. The House should also be setting an example with respect to efficiency and effectiveness. However, the public would be forgiven for wondering where MPs mislaid their ‘good solid British common sense’ on witnessing them queuing to vote for over 40 minutes, having abandoned a proven electronic voting model that facilitated the involvement of all their number, took half the time to complete, and posed far less risk of virus transmission to Members and staff.
14. A YouGov poll on 3 June found that three-quarters (76%) of the public are happy for MPs to continue voting remotely, at least until the pandemic is over [^2] . Four in 10 people thought that MPs should have to return to voting in person once the crisis is over but should be able to continue voting remotely until then, while just over a third of people (35%) said that remote voting should continue ‘now and after the coronavirus crisis is over’. Only 12% of the public supported the stance of the Leader of the House that MPs should have to return now to voting in person.
15. The Leader of the House stated in the debate on 2 June that: “there has been no ability for legislative Committees to meet since 23 March. This means that, for 10 weeks, there has been no detailed line-by-line consideration of Bills that will affect people’s lives.”
16. It is our understanding that the government could have pressed ahead with its legislative programme if it had wished to do so. The Usual Channels were presented with proposals for a socially-distanced Public Bill Committee (PBC) model which had been successfully tested. The government could have scheduled such a PBC; indeed, if ministers were so exercised about the rate of progress being made with their legislative programme, they could have scheduled a PBC for more than the usual two days per week.
17. The Leader of the House made clear in his statement to the House on 2 June that witnesses can give evidence remotely to Public Bill Committees. If witnesses can appear remotely, it is not clear why MPs could not also take part remotely in a hybrid-style PBC. Such a model has been used by select committees; it is regrettable that the government has not trialled the option.
18. The House of Lords held virtual bill committees before the Whitsun recess. These are a poor substitute for the Lords Grand Committee; but the Grand Committee model remains the template, with adjustments where necessary to reflect the digital nature of the proceedings. Interventions are facilitated, for example, during debate on groups of amendments, when a Peer can email the clerk if they wish to speak after the minister. Members are then called to speak in order of request and the Minister is called to reply each time.
19. We appreciate that as time went on Members became increasingly frustrated with the restricted nature of the hybrid proceedings. There was understandable pressure for adjournment, backbench, opposition and e-petition debates.
20. An additional sitting day would have created more time for other forms of proceeding. One of the reasons given for ending the hybrid proceedings was that they restricted the amount of time and the nature of the business that could be conducted, owing to technological constraints. However, it is unclear to us why hybrid House of Commons proceedings were restricted to three days per week, after the initial period while the system was bedded in. (The House of Lords sat virtually for four days in the week prior to the Whitsun recess (for 9-10 hours per day) and with effect from 8 June will sit in hybrid form also for four days per week.) Of course, any increase in sitting days would require more staff and funding to operate the system; but this is a resource rather than a technical impediment.
21. In our proposals for a virtual Parliament we recommended that non-essential forms of parliamentary proceeding could be temporarily deferred “whether because they do not lend themselves readily to a virtual format or because, during the crisis, the time that they absorb might be better spent on more essential business.” [^3] However, as the relative success of the technological solution and hybrid proceedings became clear, we shared the frustration that more forms of parliamentary business were not being considered.
22. Adjournment debates in particular might have lent themselves to virtual proceedings. E-petition debates should also have been a priority if four sitting days rather than three had been pursued. E-petitions are a significant feature of the work of the House, providing an important procedural mechanism to engage the public and respond to matters of topical public concern. Our Audit of Political Engagement shows that the public is generally more likely to sign a petition than they are to engage in other forms of democratic activity, apart from voting [^4] .
23. By the Whitsun recess, 22 e-petitions had passed the 100,000-signature threshold and awaited a debate [^5] . Consideration of these petitions on a sitting Thursday would have enabled the backlog to be whittled down and the public to receive a more timely response to their concerns. In his letter to the Chair of the Petitions Committee of 1 June, the Leader of the House did not provide a clear commitment that debates on petitions in Westminster Hall would resume when the House returned in physical-only form. These debates would be facilitated “as soon as resources, which are currently and inevitably constrained by social distancing regulations, allow.” [^6]
24. We are concerned at the very real prospect that in the weeks and months ahead the constraints of ‘social distancing’ on the parliamentary estate may result in some non-government business being curtailed. This is particularly regrettable when, with political will and procedural imagination, virtual proceedings could have supplemented the capacity of physical proceedings, helping to facilitate forms of business that it might not be possible to provide directly on the estate for the foreseeable future.
25. Our sense, anecdotally, is that most Members welcome the introduction of Speaker lists. They provide greater certainty about participation in debate and they enable Members to prepare speeches of the necessary length, rather than have to cut them down without notice when time limits are applied. The choice of speakers and the application of time limits were among the greatest concerns of those Members who attended our Speaker hustings (organised jointly with the House Magazine) last Autumn. Speaker lists go part-way to address these concerns.
26. We welcome the Committee’s plans to conduct further work on the House’s scrutiny of delegated legislation and look forward to offering a contribution [^7] .
27. We note that the Committee has received a proposal for a Grand Committee on Delegated Legislation to enable the House to deal with the approval of Statutory Instruments subject to the affirmative scrutiny procedure whilst reducing the need for Delegated Legislation Committees (the number of which may become problematic given the need for socially-distanced committee arrangements during the pandemic) [^8] .
28. As an interim short-term measure to deal with resource challenges arising from the pandemic and the potential need to reduce the number of Delegated Legislation Committees, the Grand Committee model has merit. However, were it to be adopted, we recommend it be subject to review. The measure should be sunsetted to make clear that no automatic precedent is created for the post-crisis era.
29. The Hansard Society has long argued for improvements in the parliamentary scrutiny of delegated legislation [^9] . In September 2017 we set out proposals for a new ‘sift and scrutiny’ system for all SIs subject to parliamentary scrutiny. We recommended a new, permanent select committee – a Delegated Legislation Scrutiny Committee (DLSC) – be established in the House of Commons to consider all SIs, replacing the current system of ‘praying’ against negative SIs and Delegated Legislation Committees for affirmative ones [^10] .
30. We believe that this model has more to recommend it than the Grand Committee model, if Members are serious about improving parliamentary scrutiny of delegated legislation. The Grand Committee model would only deal with affirmative SIs; our model would deal with all SIs, regardless of the scrutiny procedure to which they are subject. One of the reasons that DLCs are often short and ineffective is because the SI is subject to the affirmative procedure but is not controversial. SIs subject to the negative procedure can sometimes be of far greater interest to MPs, but Members are rarely able to debate the merits. By putting all SIs though a sifting system, it would ensure that MPs could focus their scrutiny on the SIs that most concern them, rather than on those which have been allocated to the affirmative procedure based on powers in legislation enacted decades ago.
31. A Delegated Legislation Scrutiny Committee would also have the powers and resources of a select committee, enabling Members to be supported in their scrutiny by a secretariat including administrative, legal and research support – a resource not available to a Grand Committee. It would have the power to establish sub-committees to specialise in particular policy areas, and would turn over to the House for further consideration those SIs of greatest concern.
32. We share the Procedure Committee’s view that the “overall impression” of select committees’ remote meetings is “positive”. We welcome the Committee’s decision to support the Liaison Committee’s recommendation that the temporary Order enabling remote select committee meetings be extended at least until the summer recess [^11] .
33. The key feature of the temporary Order is that it is only permissive. It does not require select committees and their chairs to use its provisions, nor does it prevent them from meeting and operating normally, according to pre-pandemic Standing Orders.
34. We recommend that the temporary Order be extended at least until not only the current need for ‘social distancing’ is over but also the risk of its return has passed. The number of committee rooms at Westminster able to accommodate a full complement of select committee members, plus staff, who are all ‘social distancing’ is presumably limited. If the temporary Standing Order were allowed to lapse while there remained a risk of access to physical meeting space at Westminster being restricted, the House might be required to resurrect the Order in order to allow its select committees to continue to meet. Given the Order’s purely permissive nature, having allowed it to lapse would appear short-sighted and having to revive it would not be a good use of the House’s time.
35. We further recommend that at least the first element of the temporary Order, allowing remote select committee meetings, be retained – and perhaps inserted into Standing Orders – even if and after pandemic-related risks have passed [^12] . The option of remote meetings adds a further element of flexibility to the toolkit that select committees can bring to bear on an issue, and it is worth retaining for that reason.
36. In particular, the ability to meet remotely appears to have greatly facilitated committees meeting during recess, primarily to take oral evidence. The 2020 Easter and Whitsun recesses combined saw 43% of all occasions on which Commons select committees have taken oral evidence during recesses since the start of the century. If only the period since 2010 is considered (when the introduction of September sittings caused the amount of select committee evidence-taking in recesses to fall), the combined Easter and Whitsun recesses in 2020 account for 69% of all recess oral evidence-taking occasions. While full select committees could not have met physically in most Westminster committee rooms during these two 2020 recesses even if they had wanted to, comparison with select committee activity in recesses during previous crises suggests that the availability of remote meetings prompted a significant increase in evidence-taking [^13] .
37. We would not want committees routinely to take oral evidence or otherwise meet during recesses. Meetings during recess should remain the exception, not the norm; and, if it were retained, committees should exercise the option of holding remote meetings during recess with care (perhaps with guidance from the Liaison Committee), given the implications for House staff and other resources. However, compared to the situation in which only physical meetings are permitted, the option of a remote meeting during an adjournment could, for example, better enable a committee to take evidence (including from ministers) during any future crisis. This might be especially valuable if the government were reluctant to recall the House.
38. The option of a remote meeting during an adjournment might also better enable a committee to:
scrutinise an ongoing international negotiation;
hear from a key witness with limited availability;
agree and publish a report in a more timely fashion than would otherwise be possible; or
go ahead with a pre-planned meeting on occasions when the House adjourns early.
39. In such cases, in the absence of a remote meeting option, a committee would have to choose between not meeting at all and doing so at Westminster, thus incurring the costs of travel and potentially limiting the range of Members who could participate.
40. The second element of the current temporary Order, giving greater powers to select committee chairs, is potentially more controversial than the first and its operation less transparent to outside observers. Before any decision on extending the temporary Order for a longer period or inserting it into Standing Orders, the Procedure Committee could usefully take further evidence from Chairs and Members on the usefulness of the provision and on whether it has been or might be abused.
41. As close observers of Parliament, when hybrid proceedings were introduced it was never fully clear to us why provision was not made for Public Bill Committees and Delegated Legislation Committees, nor why moving to hybrid proceedings in the Chamber required the introduction of a three-day sitting week. We have received contradictory explanations of this decision from different MPs and House staff. We therefore urge the Committee to encourage the House to provide full and clear public communications about the basis for decisions, including among other House bodies, House office-holders, the House as a whole and the Leader.
42. We welcome the fact that the introduction of remote and hybrid proceedings either side of the Easter recess seems to have been achieved in a consensual manner, with wide consultation and the involvement of all key Members and bodies, and on the basis of Procedure Committee reporting.
43. It is disappointing that, rather than establish a proper review process for these arrangements (linked to their sunset provisions), a unilateral decision was taken to abolish them. A review process could have explored, on a cross-party basis, ways to bring some or all of the hybrid proceedings and remote voting to an end, or improve some of their elements, or expand their scope and duration.
44. There could and should have been a debate in particular about the extent to which Members were prepared to tolerate a degree of differentiation in their participation, according to whether that participation was physical or remote, as the country emerged from lockdown and the House returned to more normal working. The Procedure Committee report recommending a relaxation in the parity principle provided the perfect basis for such a debate. Had that debate taken place, it would have been possible to consider, bearing in mind the varying needs of Members affected in different ways by the pandemic (by dint of geography, age, health, and caring responsibilities), how to blend proceedings on the parliamentary estate with those taking place virtually so as to maximise the amount of business that could be undertaken.
45. As it is, while we welcome the partial reversal on 3-4 June of the government’s original plans for the ending of hybrid proceedings, the House’s necessarily chaotic decision-making over those days took up additional time and prolonged uncertainty for all those who are affected by its business.
46. As highlighted above in relation to e-petition debates, we are concerned that the House has now returned to meeting largely in person at Westminster with no clear plan about which non-government, non-legislative proceedings it will be possible to hold outside the Chamber, and when and where on the parliamentary estate.
47. The government has also failed to set out any contingency plan to deal with circumstances as the pandemic persists.
48. The unfolding of events around the ending of the virtual Parliament suggest that the Leader of the House gave no thought to scenario planning or future-proofing. Given that the pandemic and its effects are likely to be with us for many months to come, it is extraordinary that there appears to have been no effort to look beyond the horizon and prepare for potential changes in circumstances. For example, there are no provisions in place to address what will happen if there is a resurgence in virus infection rates and a further national lockdown has to be instituted at very short notice. As things stand, there are no provisions to enable Chamber and legislative committee business to continue on a hybrid basis without the House first having to meet physically to decide on such arrangements. A temporary Order should be agreed as a stand-by in case it is needed to facilitate the possible resumption of hybrid proceedings and remote voting for all, at the discretion of the Speaker, in light of possible future changes to public health guidance.
[^1] : Dr Ruth Fox and Professor Meg Russell, ‘Proposals for a 'virtual' Parliament: how should parliamentary procedure and practices adapt during the Coronavirus pandemic?’, Hansard Society/UCL Constitution Unit, 14 April 2020. [^2] : You Gov, 3 June 2020, ‘Only 12% of Brits think MPs should have to physically be in Commons to vote during COVID-19 crisis’[^3] : Dr Ruth Fox and Professor Meg Russell, ‘Proposals for a 'virtual' Parliament: how should parliamentary procedure and practices adapt during the Coronavirus pandemic?’, Hansard Society/UCL Constitution Unit, 14 April 2020 [^4] : Hansard Society, Audit of Political Engagement, 1-17 (2004-2020) [^5] : https://committees.parliament.uk/publications/1221/documents/10327/default/[^6] : https://committees.parliament.uk/publications/1312/documents/11799/default/[^7] : Procedure Committee, Procedure under coronavirus restrictions: the Government’s proposal to discontinue remote participation, Third Report of Session 2019–21, HC 392, 30 May 2020, para 60 [^8] : Proposal for consideration of delegated legislation during pandemic restrictions, written evidence from Paul Evans (CVR01) [^9] : See, for example, Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society, 2014) [^10] : Hansard Society, Taking Back Control for Brexit and Beyond: Delegated Legislation, Parliamentary Scrutiny and the European Union (Withdrawal) Bill, September 2017 [^11] : Procedure Committee, Procedure under coronavirus restrictions: the Government’s proposal to discontinue remote participation, Third Report of Session 2019–21, HC 392, 30 May 2020, paras 62, 64 [^12] : This paragraph draws on Brigid Fowler, ‘Remote select committee evidence-taking is a Coronavirus change that should be kept’, Hansard Society, 7 May 2020 [^13] : Oral evidence-taking occasions were counted per day and per inquiry. A committee taking oral evidence for two different inquiries on a single recess day was counted as two occasions. A committee hearing from multiple panels of witnesses for a single inquiry on a single recess day was counted as one occasion.
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