A recent Guardian editorial has argued that the House of Commons has failed to rise to the challenge posed by the coronavirus because of its unwillingness to embrace online voting and its business within the chamber has supposedly become “a ghostly charade.” This post challenges this assessment, arguing the Commons has taken a pragmatic response to the crisis, one which allowed it the time necessary to reflect on more ambitious procedural reforms.
Shocks to the System:
The House of Commons is a political institution, in the sense that it functions as a repository of formal and informal rules and practices that enable constitutional actors (Government Ministers, The Loyal Opposition and MPs etc) to determine what is and is not appropriate behaviour in a given situation. In doing so, it legitimates the actions and inactions of constitutional actors within the eyes of others (both within and outside of Westminster) and provides them with a degree of certainty about the likely consequences and responses to their behaviour.
Traditionally, this repository has developed gradually over time. However, it is vulnerable to external shocks, moments of crisis that put the established order into flux. These periods are intensely political moments within the life of the political constitution, where political dynamics can often be irreversibly changed. During these periods, most political actors will tend to be reluctant to embrace radical change, because they will be uncertain about how any new rules or practices could affect them during and after the crisis. Accordingly, there is always a strong incentive to adapt, rather than overhaul, the established institutional order when faced with an external shock to the system.
It should come as no surprise then, that the Commons’ initial response was focused on adapting the existing rules and practices, over the riskier strategy of implementing new and untested rules and practices required for a move towards online voting and virtual debates.
The Initial Response:
On the 11th of March, the chair of the Procedure Committee presented to the Speaker of the House of Commons a series of recommendations regarding how Division Lobbies, Proxy Voting and Pairing arrangements could be adapted to accommodate the current need for social-distancing within the Commons.
The most pressing challenge for the Commons is finding a solution that avoids the rapid transmission of the virus among MPs within the often-crammed Division Lobbies. This does not necessarily require the Commons to take the radical and untested step of implementing a digital voting system. Rather, as the Procedure Committee contends, a more prudential solution involves avoiding unnecessary divisions within the House where possible. In making this recommendation, it is reasonable to assume, the committee hoped to encourage the Speaker to press upon the party whips the increased need to settle party differences through the usual channels. We have already witnessed promising signs of this advice being acted on. Since the beginning of the crisis, there has been a noticeable reduction in partisan rhetoric, hinting at greater levels of cross-party cooperation through the usual channels. Furthermore, during the Committee Stage of the Coronavirus Bill 2019-2020, the Chairman of Ways and Means made clear she would call Divisions only when they were absolutely essential. We should therefore be careful about jumping to the conclusion that the Commons has become a rubber stamp simply because it does not push for a Division. The Commons may still be exerting influence over the Government through the usual channels.
Of course, the Procedure Committee also recognised that in the circumstances of politics, some Divisions are simply unavoidable. In response, they encouraged the Speaker to allow the appointment of Tellers prior to the division doors being unlocked and an increase in the amount of time made available for voting, to reduce the queues into the division lobbies. As the Speaker rightly points out in his reply, Standing Order 38 (3) only establishes that the Speaker must provide as a minimum, eight minutes between his direction to clear the lobby and his direction to lock the doors. Accordingly, any extension of time was always within the Speakers discretion. Fortunately, the Speaker has chosen to act on this advice, allowing additional time for staggered divisions, in which MPs are divided into voting groups and are called to enter the lobbies one group at a time, akin to boarding an airline. These are important practical steps which require only minor tweaks to the Commons’ established practices.
The Committee’s more ambitious proposals focused on expanding the current Proxy Voting Scheme. The current pilot scheme allows a tightly defined group of MPs (new mothers, new fathers and adoptive parents) to register for proxy voting with the Speaker. The Procedure Committee is currently reviewing this pilot and in a potential preview of their final report, appeared sufficiently confident that the pilot scheme could be expanded to include those who are self-isolating. Additionally, the Committee also emphasised the importance of using Pairing arrangements. Pairing is an informal arrangement, which is not recognised by the House of Commons, therefore any attempts to expand this arrangement is dependent on the parties.
In their responses to the Procedure Committee, both the Speaker and the Clerk of the House were reluctant to expand the trial within the current circumstances. With the Speaker in particular, casting doubt on whether an expanded proxy voting system could readily operate as a substitute for the more traditional Pairing arrangements. In placing their faith in the Pairing arrangements, both the Speaker and the Clerk were emphasising the importance of securing the agreement of the parties for any procedural changes through the usual channels.
This is unsurprising, if one remembers Tony Wright’s insight that “all the essential features of the House of Commons are structured by the realities of party.” Yet some might view this as a missed opportunity for modernisation. After all, the reputation of Pairing arrangements suffered greatly during the previous Parliament. Although such problems are unlikely to reoccur in the current context, given the Government’s stable majority and the more constructive tone of the opposition parties on Covid-19 related matters, the actions of the Conservative party’s whips have undermined the legitimacy of the pairing arrangements in the eyes of many MPs and external observers.
The Clerk’s Memorandum to the Procedure Committee provided an important contribution to the Committee’s thinking about continuing the vital work of the Select Committees. Any move to videoconferencing would require a Temporary Standing Order to adjust the committee quorum required to report to the House (SO 124). The Clerk wisely drew the Procedure Committee’s attention towards the precedent set by the well-received Parliamentary Commission on Banking Standards 2012-13. The Commission was designed to provide a faster, cheaper and more effective investigative body than a judge-led inquiry. Although, it operated like a Joint Committee, the Commission was unshackled from some procedural constraints that have previously impeded their work. Unlike Select Committee Chairs, the Banking Commission’s Chair was empowered to report to the House, in a way that bypassed the need for the Commission’s members to be physically present when voting on whether an order, report or resolution should be put before the House. The Chair could report to the House, so long as he was satisfied, he had consulted all of the Commission’s members and it reflected the majority view of the Commission. This advice was incorporated into the Procedure Committee’s draft Select Committees (Participation and Reporting) (Temporary Order), which was put before and agreed by the Commons prior to the early recess. This order will remain in place until 30 June 2020, but it can be extended further by the Speaker, if need be.
Nevertheless, the Procedure Committee opted not to act on the more radical suggestions put forward by the Clerk for the time being. These included allowing MPs to deliver oral questions and present ballot bills on behalf of another MP that is unable to attend the chamber. A more radical suggestion is to allow the implementation of party votes, as seen in New Zealand. Under this system, votes are cast as a block by the party whips. This would reduce the need for MPs to be within the chamber when a division is called. Importantly, in New Zealand MPs retain the right to vote separately from their party or withdraw their vote from their party’s block if they so wish. The current quorum-related Standing Orders would still need to be amended to allow this to occur. Although the Committee has not accepted these suggestions, they reveal further possible changes that could be recommended following the Easter Recess.
The Common’s initial response was pragmatic, given the unprecedented and rapidly evolving nature of crisis. Its response prioritised allowing the House to continue to operate until the recess and enable the Select Committees to carry out their vital work. It is also important to recognise that this initial response bought senior Commons figures valuable time to consult and reflect on the more innovative and ambitious changes that might be needed following the recess.
This allowed senior figures time to engage in inter-legislative learning, drawing upon the experiences of other legislatures. In particular, the Commons was able to monitor the devolved legislatures’ experimental forays into the world of virtual parliamentary sessions (see for example the Scottish Parliament’s decision to host a Leaders’ Virtual Question Time and the National Assembly of Wales’ decision to host a virtual parliamentary session). Moreover, it also enabled senior figures more time to work with the Parliamentary Digital Service and Broadcasting Team to overcome the practical and technological challenges of hosting virtual parliamentary sessions. Thus, reducing some of the uncertainties around a move towards a virtual Commons.
On the 16th of April, the House of Commons Commission agreed plans for a ‘Hybrid House of Commons.’ Under these plans, MPs will be able to take part in Oral Questions, Urgent Questions and Oral Statements either within the chamber or via video conferencing software. Nevertheless, these are only the first steps and will not cover debates on legislation and motions. Although, the Commission has suggested if successful, the House may consider expanding these plans if necessary. On the 21st of April, the Commons agreed without division the Leader of House’s initial motions on temporary measures establishing a hybrid Commons, by enabling electronic participation and restrictions on the number of MPs allowed within the chamber. Therefore, taking the first gradual steps towards a virtual Commons.
To conclude, although there remains scope for procedural innovation and reform within the Commons, in practice we should expect the Commons to continue to engage in a gradual approach to procedural reform when responding to the threat posed by the coronavirus.
Robert Greally is a PhD Candidate in the School of Law, University of Sheffield.
I wish to thank Brian Christopher Jones, Richard Kirkham, Michael Gordon and Alison Young for their comments on a previous version of this post.
(Suggested citation: R. Greally, ‘The House of Commons’ Initial Procedural Response to the Coronavirus’, U.K. Const. L. Blog (22nd April 2020) (available at https://ukconstitutionallaw.org/))