As the pandemic moves into its second year, the effects on Parliaments, not only as legislating and accountability bodies but as institutions, are becoming more apparent. What began as a series of emergency measures imposed by government, generally supported by all parties, has given way to longer term concerns regarding government accountability and the sidelining of Parliament, along with some consideration and re-imagining of post-pandemic Parliaments.
In January 2021, the UK Study of Parliament Group published Parliaments and the Pandemic, a far-ranging study edited by Paul Evans, Christine Salmon Percival, Paul Silk and Hannah White, comprised of 25 papers on various aspects of Parliament as an institution, and the people responsible for the continued operation and functioning of the work of Parliament and its members. The study is comprehensive and an excellent example of how to examine the effects of the pandemic on all aspects of any institution. While there have been a smattering of articles, papers and publications that have examined certain aspects of Parliament during the pandemic—procedure, voting, minimum requirements for holding a Parliament, and the potential lack of accountability— this is the first study I am aware of that examines the effect on the people that support the institution, participation, and the tenor of proceedings. Examining Parliament from 360 degrees gives not only insight on the effects of the pandemic but provides perspective for considering post-pandemic Parliaments.
As one would expect, there are well crafted contributions that outline the steps taken by each House, and the devolved assemblies, to meet the challenges of continuing to conduct House and committee proceedings. They show a progression of steps taken, and procedures amended, as the bodies moved from no proceedings, to distanced, virtual and hybrid ones. They outline how technologies were developed and used to allow for attendance of participants from disparate locations and under various circumstances. All of these are good illustrations of what was done and how. Many of the actions taken and technologies used, along with the timelines, will be familiar to Parliaments around the Commonwealth, since almost all have had similar experiences, arriving at comparable solutions.
This study excels, however, when it expands beyond description of House business to examine the effect the pandemic has had on the tenor of those proceedings, the diversity of attendees, the work of MPs with their constituents, the effect on MP staff, parliamentary support, IPSA, the media, and Member’s personal and professional lives. There is also a paper on parliamentary design and the use of space in future Parliaments as a reflection on the various interpersonal interactions, the historic “confrontational” institution implicit in the design, and the opportunity to address the concern in the ongoing refurbishment of the Palace of Westminster.
The studies that focus on the individuals necessary to support the complex institution that is Parliament, and the role and experience of Members in the 21st century, inevitably delve into the “culture” of the institution and the inter-personal relationships that exist within it, both before and during the pandemic.
Although somewhat of a caricature, the pre-pandemic Houses of Parliament are often essentially a male dominated, clubby, confrontational form of political theatre. Of course, much work was done, Committees were able to scrutinize the government and its legislative proposals and some degree of the “confrontation” put the necessary teeth into government accountability. At the same time, bringing Members together meant that they were physically together. They not only conducted the formal business of the nation, but they were able to buttonhole Ministers and other Members, discuss matters off-line and develop networks, and make contacts with other Members, bureaucrats, and the media. Many saw the physical presence and collegiality in the way business proceeded as the natural evolution of parliamentary business as it has been conducted over the last 700 years.
For some, what the response to the pandemic has brought is a pale imitation of the previous glory of Parliament. The usual cut and thrust of parliamentary politics has been replaced, many argue, with a more sterile and orchestrated form of proceeding. Now, interventions are limited, lists of questioners and speakers are scheduled by Whips, Leaders have gained greater control over proceedings, watching debates has become akin to watching television, and scrutiny has become less effective as governments shelter behind expanded regulatory powers that allow sweeping and everchanging regulations that no House can keep track of, let alone scrutinize. All of this at a time when time, space, and bandwidth limit the capacity of Parliament to react. This squeeze has allowed governments to retain and press the initiative at the expense of parliamentary and public scrutiny. There is some concern that governments may even be happy with the greater control they have over the agenda, and the seemingly more anemic scrutiny and accountability they face from managed debate. Only a return to a full-throated, pre-pandemic operation of Parliament, some would argue, will restore it to its proper functions and work.
For others, the technological responses to the pandemic were long-overdue. Modernization and efficiencies brought by these changes, if made permanent, will allow for more diversity of participants (and therefore views), better use of time for Members, more family friendly chamber and work experiences, and a less assertive, more positive, parliamentary environment. The side deals and backroom dealing will be squeezed out of the shadows. The introduction of technology has allowed for virtual attendance for Members and witnesses from wherever they are. No longer will Members be required to attend in the capital, sometimes involving long travel (and time away from home and constituencies) for short attendance and votes. Witnesses, particularly from farther-flung parts of the country and those without resources, will be better able to participate in committees. Those with family, health and pressing constituency issues could continue to attend and participate. Better organization brought about by speaking lists will help with structuring time and allow Members to focus their work. This in turn will allow for more organized, detailed scrutiny. And all Members can attend and follow proceedings from wherever they are (whereas, at present, neither chamber can hold all members). Many of the pressures on Members to physically attend at the capital could also be alleviated for Member staff and parliamentary administration if there were less travel and greater resources for electronic communication, publication, filing and administration.
Striking the right balance among the functions and needs of the Houses, particularly scrutiny of government, the well-being of Members, participants, and administration, as well as ensuring diversity, participation, and public engagement at the constituency and national levels, is the challenge and opportunity presented by the pandemic. This Study presents much food for thought about the past present and future of Parliament. For the editors of the Study, the lessons they see are (slightly edited):
“1. Virtual, or at least hybrid, committees are here to stay. We need to think about how to harvest the advantages they have shown – including especially more open, real-time collection of diverse voices and geographically distant opinions. Committees could spend less time performing and more time thinking. But we need to consider how to recover or replace what is lost through being in the same room – including the opportunity to compel the physical attendance of key witnesses such as ministers when appropriate.
2. Technology might have the potential to enable a different balance to be struck between presence in the constituency and presence in the legislature and, in doing so, change who is able to participate in politics. Even if the presence in the legislature remains important and sometimes necessary, remote participation should be facilitated. However, procedural innovation needs to ensure that effective scrutiny is not compromised by less physical presence and that there is equality of opportunity and esteem between remote and physical participation.
3. If there is to be that equality of access and opportunity, and if they are to be able to respond effectively to the increase in digital engagement by constituents, support in both financial terms and technological know-how needs to be commensurate with the challenge to Members of handling the complexities of their contemporary jobs.
4. Remote voting makes a lot of sense in enabling normal people to be politicians and retain a semblance of normal life. In legislatures with in-person voting it would represent a considerable efficiency for time-poor members and allow those who are indisposed to continue to cast their votes in person.
5. We need to do better at scrutinising delegated powers before they are handed to ministers, and to redouble efforts to make scrutiny of delegated legislation once made fast, forensic, and effective.
6. Parliaments have shown that they can be agile and adaptable in a crisis, and have the flexibility to make temporary changes to the rules of procedure. But they need effective governance arrangements to enable this to be done without the permission of executives, and to ensure such changes cannot be imposed by executives without their consent.
7. Parliaments must assert their centrality in holding governments to account. Can the opportunities of the digital world be used to increase, rather than stifle, effective oversight?”
I would add that although institutional needs must come first, it must always be remembered that Members, participants, and administrative personnel are people, and their personal needs and wellbeing must be considered and accommodated whenever possible. The expanded use of technologies will also provide for greater diversity of participants and views, transparency, and accountability.
For anyone who studies or advises Parliament or other legislative bodies, or any other large institution, Parliaments and the Pandemic, is a valuable example of how to examine a large and complex institution, who and what to look at. It also lays out a blueprint for further study of the ways in which institutions can better serve as they were intended to in a post-pandemic 21st century world.
As Philippa Tudor indicates, many of those involved were of the opinion that “several years change were achieved in several weeks.” (p. 69) This was echoed by the Strategic Director of Chamber Business who is quoted as saying that “what we have and done in the last four weeks has probably been the biggest set of changes to how the House of Commons works in the lats 700 years.” (p.110) These comments make it clear that institutions can change to meet urgent situations, but as the remainder of the study shows, “the crisis has simply exposed and illuminated structural weaknesses in our constitutional arrangements that are present in both exceptional and normal times.” (Tom Hickman p.54). Regardless of the institution, a study as all-encompassing as Parliaments and the Pandemic provides a way to uncover and explore institutional weaknesses and solutions. It is our responsibility to address those structural weaknesses, not merely to paper them over.
Steven Chaplin, Adjunct Professor Common Law and Fellow uOttawa Public Law Centre
(Suggested citation: S. Chaplin, ‘Review of Parliaments and the Pandemic’, U.K. Const. L. Blog (8th March 2021) (available at https://ukconstitutionallaw.org/))