3Operation of a proxy voting scheme
43.We set out below how a proxy voting scheme could operate should the House decide to implement the proposal. A proposed standing order to implement such a scheme, and a proposed scheme on how it should operate, are annexed to this Report.31
Eligibility for the scheme
44.We recommend that proxy voting ought to be available to new mothers, new fathers and adoptive parents.
Certification
45.The Commons Reference Group on Representation and Inclusion, in its written evidence to us, proposed that a Member would demonstrate eligibility for the scheme by producing the following documents to the Speaker:
- A certificate of pregnancy from a registered practitioner, midwife or health visitor, or
- A ‘matching certificate’ from a registered adoption agency.32
We concur. The production of such a certificate ought to be a sufficient requirement to register for the scheme. No further validation should be required.
Duration
46.The Reference Group proposed that the maximum duration of the dispensation to vote by proxy should be as follows:
- Six months for the biological mother of a baby, or for the primary or single adopter of a baby or child
- Two weeks for the biological father of a baby, the partner of the person giving birth or the second adopter of a baby or child.33
We endorse these proposals.
Starting and ending the scheme
47.The Reference Group did not specify a date from which the leave should start. We consider that any period of absence taken by the mother or primary adopter should start at or before the due date or adoption date and should be taken as a continuous period of up to six months, including periods when the House is adjourned, prorogued or dissolved. Similarly, the absence claimed by the father, partner or second adopter should be taken in one continuous period of two weeks.
48.Having demonstrated eligibility for the scheme, the Member should specify in writing to the Speaker the dates on which the absence shall begin and end, subject to the maximum durations set out above. During that period the Member would be entitled to cast a vote by proxy. If the specified start (or end) date was not a sitting day, the period of entitlement would begin (or end) when the Speaker took the Chair on the next sitting day. The Member should also name the Member who has agreed to carry her or his proxy vote, thereby vouching that an agreement has been entered into.
49.On receipt of the information specified above the Speaker should issue a certificate setting it out in full, and cause it to be entered in the Votes and Proceedings.
50.There may be circumstances where an extension of the maximum period is sought: for instance, when an expectant mother is unable to travel to Westminster for some weeks before her anticipated due date because air travel is the only practicable means of transport and her pregnancy has advanced to a stage where a carrier will not accept her as a passenger. In such circumstances the period of dispensation to vote by proxy may have to start some weeks before her due date. Where it is certified that a Member is unable, because of pregnancy, to travel to Westminster by air, the maximum period may be extended by four weeks, to include the period before the due date where travel to Westminster is not possible.34
Members eligible to act as a proxy
51.In the Australian House of Representatives the Chief Whip of a Member’s party will cast every proxy vote on the new mother’s behalf.35 The Members we consulted generally did not think that at Westminster there should be a requirement, or a presumption, that a proxy vote should be given to a whip, although Valerie Vaz MP, Shadow Leader of the House, argued that a system in which the whips held proxy votes would be easier to administer.36
52.Jo Swinson MP stated that the appointment of a proxy “should be up to Members to decide. It should not be up to the House to get overly involved in deciding what it should be”.37 The Leader of the House agreed, and noted the difficulties that carrying a proxy vote would pose for party whips:
“Even if [the absent Member] did choose to vote with the Government on every single vote, they should still retain the right to not have to do that. Therefore, if the proxy was only ever given via the Whip, it would put the Whip in a difficult position, if you decided to vote against the Government in one vote and they had to implement that for you”.38
53.Members ought to be free to choose any other Member of the House who is eligible to vote in divisions to act as a proxy.39 That Member will be named in the certificate issued by the Speaker.
54.Members from all sides of the House will, of course, be expected to act as proxies in strict accordance with the instruction given by the absent Member. This may mean that a Member, in certain circumstances, casts their own vote in one lobby and the proxy vote in the other; they may indeed cast a proxy vote without casting their own vote at all. We nevertheless expect that an absent Member will generally choose a Member likely to vote in the same lobby.
55.Members eligible to vote by proxy must establish a robust understanding with the Member nominated as their proxy as to when the proxy vote will be cast and how it will be exercised.
Varying the arrangement
56.A Member who wishes to vote in person at any time during the period of dispensation ought to be able to do so, provided that the Speaker has been notified no later than the scheduled end of the previous sitting day that the proxy arrangement is being suspended.
57.A Member who wishes to change the Member who is their proxy, to end their period of proxy voting earlier than originally notified, or to cast a vote in person on a specific item of business, should give written notice to the Speaker as early as possible, and at the very latest by the scheduled rise of the House on the sitting day before the change is to take effect. The Speaker should then issue a new certificate, which should appear in the Votes and Proceedings on the day that it is issued. Changes of proxy made for a specified period ought to take effect when the Speaker takes the Chair on the first sitting day specified, and end when the House rises on the last sitting day specified.
Recording a proxy vote
58.A Member casting a proxy vote in a division ought to inform the Division Clerk at the appropriate desk, and the tellers at the doors of the lobby, and ought at the same time to make it clear whether that Member is casting his or her own vote in the same lobby.
59.Where a proxy vote is cast, it must to be recorded in a transparent way. When listing the result of divisions, both online and in its printed edition, the Official Report (Hansard) must note votes which were cast by proxy, by marking a symbol adjacent to the name of the absent Member and identifying the Member who cast the proxy vote. It should be the aim that this record should be treated as an integral part of the digital record of Commons divisions and should be shared as open data in a format compatible with Parliament’s Open Data output, both as part of the dataset for each division and as a standalone output.
60.Detailed arrangements for implementation of the scheme insofar as it relates to the recording of votes may be made by the Clerk of Divisions. We recognise that in the initial phase of any implementation the recording of proxy votes is likely to be done manually, alongside the tablet devices now used to record the names of Members voting. The experience of an initial trial period will inform development of the tablet software.
When a proxy vote ought to be available
61.The practices of the House in debate and decision expect Members to be present in or proximate to the Chamber for debates, to follow proceedings and to make up their own minds on the arguments expressed. Since Members are elected as representatives, rather than party delegates, to make their own judgment on the matters before them in debate, constituents generally expect them to be present in the Chamber and to vote in person, especially on matters of great moment.
62.Proxy voting has not generally been compatible with the House’s practices. The resolution of the House of 1 February 2018 expressly recognised that if proxy voting were available to new parents it should not be compulsory. We strongly agree.
63.Voting is in every case a personal decision for a Member, who is responsible to constituents for the exercise of a vote. Similarly, the entitlement to a proxy vote, and to its use, will be personal. There will be circumstances where eligible Members consider it is not appropriate to use proxies. In such cases they are free to be ‘paired’ or to vote in person.
Categories of business
64.We have heard a range of views on the question of when a proxy vote ought to be available for use. Harriet Harman considered that in principle a proxy vote should be available to be used in all divisions in the House, so that a constituency could at all times consider itself fully represented.40 The Leader of the House saw a case for proxy voting to be used on some items of business, but not others:
There are some Private Members’ Bills that are very likely to be enacted and there are other that are not. As we know, few Ten-Minute Rule Bills are enacted. Where legislation has a reasonable chance of becoming law would probably be where I would draw the line, in fairness to the individual who is having to delve into these matters and form a view, as well as to Parliament where their vote should be able to count.41
65.A Member with a proxy vote will be able to be absent from the House for divisions without having to seek authorisation from a whip in respect of whipped votes. The Member could also benefit from an ability to arrange to cast a vote in all divisions, not just those on whipped business: a vote might be cast in any division as long as the proxy is prepared to be present for it.
66.This raises issues which the House will have to consider carefully in any decisions it takes on implementation. Ought Members with proxy votes be entitled to vote by proxy on unwhipped business where they might otherwise have a choice of being absent? Members come under increasing pressure to be present in the House on those Fridays when private Members’ bills are debated and voted on, and have to balance these demands against their commitments in the constituency and elsewhere. Members with proxy votes will not be subject to these pressures, but may increase the pressure on their proxy to be present at Westminster to vote on legislation.
67.Subject to the specific exceptions below, we consider that the House ought to determine the categories of business where a proxy vote will be available. The draft Standing Order contained in Annex 1 to this Report provides for proxy voting to be available on all items of business, with certain specific exceptions which we discuss below. A motion to make a new Standing Order in these terms ought to be amendable.
68.We recommend that the House consider three options for the categories of business where proxy voting may be used:
a)Decisions on all items of public and private business;
b)Decisions on all items of public and private business taken on Mondays, Tuesdays, Wednesdays and Thursdays; or
c)Decisions on all items of Government business (that is, all orders of the day on Government bills and all motions moved by a Minister of the Crown).
Procedural incompatibilities
69.The Australian House of Representatives restricts the procedures on which proxy votes are available. A proxy vote is not permitted on the third reading of a Bill which proposes an alteration of the Constitution, since in such cases the Constitution requires an absolute majority of the House to vote in favour of third reading for the Bill to pass.42
70.We have examined whether similar restrictions ought to apply to proxy voting in the House of Commons, and have identified two categories of proceeding where we consider proxy votes ought not to be available.
Decisions on an early general election
71.Under the Fixed-term Parliaments Act 2011 a motion to authorise an early general election must be passed with a majority voting in favour equal to or greater than two-thirds of the number of seats in the House of Commons.43 The passage of such a resolution by the stipulated majority triggers the dissolution of Parliament.
72.The Clerk of the House of Commons observed that the two-thirds majority was a statutory provision. A decision taken on the basis of proxy votes
[…] would be open to judicial review, potentially, if there was any doubt about it. I would not want to expose the House to any greater risk of that, so there would need to be no doubt about what had happened.44
We recommend that no vote shall be cast by proxy in any division on a motion ‘That there shall be an early parliamentary general election’ pursuant to section 2(1) of the Fixed-term Parliaments Act 2011.
73.We do not consider that a similar risk of challenge arises to decisions with statutory effect which are taken in the House by simple majority.
Quorum
74.While the House shall not be counted at any time,45 the presence of a quorum of Members sufficient to transact business can be determined by dividing the House. If fewer than forty Members participate in a division (fewer than thirty-five Members voting, plus the occupant of the Chair and four tellers), then the business under consideration automatically stands over and the House moves to the next item of business.46
75.The Clerk of the House observed that: “It would be odd if absent people constituted what is effectively a quorum”.47 We agree. We recommend that votes cast by proxy shall not be reckoned for the purposes of ascertaining, under Standing Order No. 41(1), whether fewer than forty Members have taken part in a division.
Majority for closure
76.Standing Order No. 37 provides that for any decision on a question to close debate48 or to propose the question49 the question shall not be decided in the affirmative unless not fewer than 100 Members voted in support of the motion. The House therefore requires a certain majority to be present and voting for such closure motions to pass.
77.The House ought to determine, when deciding on a standing order to implement any scheme for proxy voting, whether it considers that proxy votes ought to be counted in reckoning the majority for any closure motion on categories of business where proxies may be used.
English Votes for English Laws
78.Divisions in legislative grand committees (LGCs) established to give consent to provisions of Bills certified under the Standing Orders relating to English votes for English laws (EVEL) are held in the division lobbies. Only Members from the qualifying constituencies for each LGC (England, England and Wales or England, Wales and Northern Ireland) may vote in such divisions.50
79.We have considered whether there is any procedural incompatibility in allowing a Member not from a qualifying constituency to enter a lobby to cast a proxy vote for a Member from a qualifying constituency. Since we have already established that it is possible for a Member to cast a proxy vote in a division lobby without casting his or her own vote, we consider that there is not.
80.Divisions on certified items of delegated legislation, or certified Lords Amendments, are taken by double majority voting: the whole House votes once, and the division results for the whole House and for qualifying constituencies are determined and announced to the House. There is no inherent difficulty in a Member who does not represent a qualifying constituency casting a proxy vote in such a division.
When a proxy vote ought not to be used
81.We have examined whether there are any decisions of the House, other than those where a procedural incompatibility exists, where proxy voting ought not to be used.
82.Some witnesses considered that certain types of decision ought not to be taken on the strength of proxy votes. In particular there were strong reservations about the use of proxy votes on decisions to commit troops to combat, particularly where a motion might pass or fail on the strength of proxies. Pressed on this matter, David Lammy MP noted that “life and death” might be an instance where he would not use a proxy vote: “there are moments […], where we make fundamental decisions of life and death on behalf of others, so I do think that votes to commit people to war might be that exception”.51
83.There is an inherent risk to the House’s reputation of Members away from the House casting votes as if they are present in the Chamber and actively following debates. For example, it would be unthinkable, in our view, for a motion on committing military personnel to armed conflict to be carried on the basis of proxy votes. We are confident that Members will bear the reputation of the House in mind when choosing whether to use a proxy vote, and weigh this factor in their decision making.
Use of proxy votes outside the Chamber
Paper ballots
84.The Clerk of the House indicated, in his memorandum, that procedures akin to ‘nodding through’ have already been used, by agreement with whips, for the casting of paper ballots in deferred divisions and in paper ballots cast in the election of officeholders: the Speaker and Deputies, and chairs of certain select committee chairs.52
85.We consider that a proxy ought to be able to cast a vote for an absent Member in deferred divisions and in elections for the Speaker, Deputy Speakers and select committee chairs.
Committees
General committees
86.We strongly recommend that the Selection Committee shall not appoint a Member registered for a parental absence proxy to a general committee on a Bill or on delegated legislation.
87.We expect that a Member nominated to a public bill committee who then takes a period of paternity absence will in the normal course of events be replaced on the committee, either temporarily or permanently.
88.We do not think it necessary to make specific arrangements for proxy voting in the territorial Grand Committees,53 where it is not the practice to schedule substantive business which might be divided on.
Select committees
89.Divisions in select committees, when they occur, take place when the Committee is meeting in private and deliberating, typically on a draft report. We do not think it appropriate in these circumstances for a committee member absent from such a deliberative meeting, and by definition unable to participate in the deliberation, to be able to cast a vote on any question by proxy.
31 Annex 1 contains a proposed new Standing Order. Annex 2 summarises the proposals in this report to be included in a proxy voting scheme. Annex 3 contains a draft resolution of the House to give effect to a scheme drawn up by the Speaker and agreed by the leaders of the three largest parties.
32 Commons Reference Group on Representation and Inclusion (PVG 0002), para 11
33 Commons Reference Group on Representation and Inclusion (PVG 0002), para 11
34 Q116
36 Q152
37 Q125
38 Q187
39 The Speaker and the three Deputy Speakers do not vote in divisions. Chairs of Committees on Bills (whether in Committee of the whole House or a Public Bill Committee) do not vote on the remaining stages of the Bills where they have chaired proceedings in Committee.
40 Qq2–3
41 Q185
43 Fixed-term Parliaments Act 2011, section 2(1)
44 Q91
45 Standing Order No. 41(2)
46 Standing Order No. 41(1)
47 Q91
48 Standing Order No. 36
49 Standing Order No. 29
50 Standing Order No. 83W and Standing Order No. 83X
51 Q58
52 House of Commons Service (PVG 0001) para 7
53 The Scottish Grand Committee (Standing Order No. 93), the Welsh Grand Committee (Standing Order No. 102), the Northern Ireland Grand Committee (Standing Order No. 109) and the Regional Affairs Committee (Standing Order No. 117).
Published: 15 May 2018