3Proxy voting for public health reasons
77.On 21 and 22 April 2020 the House agreed temporary Orders to facilitate hybrid scrutiny and substantive proceedings. On 22 April the House also agreed provisions for remote voting, which had effect until 12 May. On 12 May all three provisions were extended until 20 May. On 20 May the orders expired, at the same time as the House adjourned for the Whitsun recess.
78.On 2 June the House was recalled at an earlier time than the one appointed, specifically to allow decisions to be taken on how it would conduct its proceedings following the expiry of the temporary orders, and in the light of the decision of the Speaker, on the advice of Public Health England, to restrict the maximum number of Members allowed in the Chamber at any one time and to prohibit the use of the division lobbies for the conduct of divisions in the traditional way. The House rescinded the earlier resolution requiring a parity of treatment between Members participating virtually and physically, and did not revive the order authorising the use of a remote division system. Divisions on these decisions were made using a temporary method established under the Speaker’s authority, entailing Members passing through the Chamber individually at socially distanced intervals to record their votes.
79.On 3 June the Prime Minister announced that the Government would table a motion that evening to provide that certain classes of Member prevented from attending Westminster for coronavirus reasons would be entitled to a proxy vote.35 The Committee considered the Prime Minister’s announcement, of which the Chair and the House authorities had been given very limited prior notice, and issued a factual special report on the matter to aid the House’s consideration of any motion to be moved the following day.36
80.On 4 June the House agreed to the Leader of the House’s proposal to amend the temporary order for proxy voting to include Members where were “clinically extremely vulnerable” and “clinically vulnerable” and to direct that the proxy voting scheme be amended in consequence. On 10 June the House agreed to a further proposal to modify the criteria for proxy voting eligibility, this time to include Members who were unable to attend Westminster “for medical or public health reasons related to the pandemic”.
81.This chapter of our report contains observations, conclusions and recommendations regarding proxy voting for public health reasons.
Eligibility and notification
82.The proxy voting scheme currently sets out the eligibility for a proxy vote for medical and public health reasons related to the pandemic. The scheme reads “A Member shall demonstrate eligibility for part (b) of the scheme by writing to the Speaker to assure the Speaker that they are unable to attend at Westminster for medical or public health reasons related to the pandemic.” Members can self-certify that they believe they are unable to attend Westminster and are therefore eligible for a proxy vote. There is no requirement for Members to prove eligibility for the scheme or specify their reasons.
83.The ability of Members to self-certify is reasonable and proportionate, under present circumstances, and should not be changed. Members should not be in a position where they have to disclose medical, caring or other personal responsibilities in order to be eligible for a proxy vote.
Proxy voting and virtual participation
84.Members are also able to participate virtually during scrutiny proceedings, under the terms of a separate order agreed to by the House on 4 June. The arrangements concerning eligibility for virtual participation are made by the Speaker.
85.The processes for applying for a proxy vote and for virtual participation in scrutiny proceedings are separate, though both processes require a Member to self-certify that they are unable to attend Westminster. It naturally follows that if a Member is applying and eligible for virtual participation, they may also be eligible for a proxy vote. If a Member has self-certified that they are unable to participate physically in the Chamber for public health reasons, they ought not to be present on the Estate and certainly ought not to attempt to vote in person. Similarly, if a Member has self-certified to the Speaker that they are eligible for a proxy vote for public health reasons connected with the pandemic, they are self-evidently ineligible to participate in physical proceedings on the Estate.
86.The Clerk of the House, Dr John Benger, observed that there had been initial issues about the requirements entailed in any application to participate or to vote remotely, though he said that on the whole such issues were diminishing:
There were a couple of instances of Members thinking that it was a matter of choice whether or not they participated virtually or physically, whereas in fact there are criteria laid down for the self-certification based on a number of principles. […] We notice occasionally there are Members down for proxy voting and to participate virtually and then still seeking to speak in the Chamber, and that cannot be right. That is specifically proscribed. But we have had only a couple of examples where we have needed to intervene.37
87.Under the directions published by the Speaker it is clear that a Member’s self-certification for proxy voting, virtual participation or both on any sitting day ought to preclude attendance on the Estate that day. Attendance in the House when either dispensation is active flies in the face of the undertaking formally given to the Speaker when self-certifying. We encourage all colleagues participating in self-certifying arrangements to familiarise themselves thoroughly with the obligations entailed in self-certification.
88.Should proxy voting for medical and public health reasons relating to the pandemic be continued beyond 28 September, we recommend that the processes for self-certifying for the purposes of virtual participation and for proxy voting be aligned.
Duration
89.The revised proxy voting scheme states that “A proxy vote under part (b) of the scheme (medical or public health reasons related to the pandemic) shall last until the expiration of the temporary Standing Order (Voting by proxy) or until the House otherwise orders.” At present, the provisions of this temporary order lapse on 28 September 2020.
90.Coronavirus restrictions, including official guidance to individuals on measures to protect their health and general restrictions on activities outside the home, are susceptible to frequent adjustment, particularly as the authorities in each nation of the UK respond to evidence of increased transmission and infection in certain areas. The reopening of schools to pupils is likely to decrease the pressure on colleagues who had to take on childcare responsibilities when schools were closed and may now be able to attend the House in person.
91.It is nevertheless likely that conditions requiring a number of Members to stay away from Westminster will persist for some time to come. No reliable prospect has been given of a date on which the majority, or indeed all, coronavirus restrictions which inhibit travel to Westminster can be expected to cease.
92.The House will have to give careful consideration to the dispensations it wishes to allow to Members who, when the current proxy voting arrangements expire, continue to find themselves unable to attend the House because of restrictions deriving from the pandemic. Party managers are best placed to know which Members have genuine issues, directly related to coronavirus restrictions, which prevent them from attending.
93.We note the increased use of “local lockdowns” where specific districts or urban areas have been made subject to bespoke statutory restrictions in response to heightened rates of disease transmission. Any Member representing such a district, or ordinarily resident there, will be subject to statutory provisions, breach of which is a criminal offence. We do not consider that the ancient privilege of the House to require the attendance of its Members at Westminster without hindrance is capable of being exercised to exempt any Member from the requirement of the criminal law, and on public policy grounds we do not think it is appropriate for Members to be exempted from such restrictions.
94.We recommend that proxy voting for public health reasons relating to the pandemic continue for as long as public health guidance or statutory provisions in any part of the UK has the effect of restricting the ability of Members to travel to Westminster. The House’s provision in this respect ought to take into account guidance and statutory restrictions in effect in all four nations of the UK and the statutory imposition of “local lockdowns”.
95.We recommend that the Leader of the House conduct urgent discussions through the usual channels to ascertain the current position in respect of Members prevented from attending the House for public health reasons. This will facilitate the design of eligibility criteria which are appropriate to current requirements and sufficiently flexible to take future changes in restrictions in all four nations into account.
Exercising the proxy
96.Under the current temporary arrangements for voting in divisions, Members walk through the relevant division lobby, exercising social distancing, and tap their parliamentary passes on designated card readers to record their name. They then record their vote by being counted by the tellers as they pass out of the lobby. Members carrying proxies tap their pass on the card reader to register their own vote (if they are voting in the same way as the proxy vote they are casting), and when passing the tellers inform them of the number of proxy votes they are casting. They are then required to email the Public Bill Office with the names of the absent Members for whom a proxy is being cast.
97.The name information from the card reader system and the proxy voting emails is collated in the House’s division information system and tallied with the number of votes recorded and subsequently released to the CommonsVotes app and to Hansard for publication.
98.The current system, rapidly designed from available resources to meet the urgent requirements of the House, has a number of evident points of failure, despite the best efforts of the House authorities to establish all possible mitigations. The numbers reported to the Chair by a designated teller after each division represent the agreed result of that division, which may be corrected only following a report from the tellers. We are aware that, on occasion, delays in submitting the information about the names of those casting proxy votes has led to significant delays in the publication of accurate division lists, and when Members casting proxy votes have omitted to submit names to the Public Bill Office it has been very difficult to produce accurate lists.
99.The current system for recording votes in divisions appears to be the best available given the will of the House and the facilities and resources available. Effective operation of that system, particularly in relation to proxy votes, relies significantly on the cooperation of Members, and in particular on the prompt and accurate submission of names of those voting by proxy so that accurate division lists can be compiled swiftly.
Designation of proxy
100.After the House agreed the expansion of eligibility for proxy voting on 10 June there were a significant number of proxy voting certificates. The Votes and Proceedings of 11 June recorded 135 proxy voting certificates. The vast majority of designated proxies were whips.
101.Our predecessor Committee considered this issue in general in its initial report on proxy voting for parental absence, when of course contemplating the exercise of a dozen proxies at most:
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. That Member will be named in the certificate issued by the Speaker.38
102.In the current circumstances it is easier to administer the proxy voting scheme if proxies are held by whips. This is due to the large number of active proxy votes. If each were designated to a different Member there would be a heightened risk of error and confusion.
103.Given the method of casting the proxy in the current method of divisions, it is easier if a handful of people are emailing the Public Bill Office with proxies as opposed to individual entries. However, designating a whip as a proxy should not become the norm. It is only due to the current exceptional circumstances that we consider it remotely acceptable and compatible with the House’s custom and practice. We note with approval the instances when a party whip carrying a proxy has observed the wishes of the instructing Member and has cast that proxy against the directions of the relevant chief whip: this honourable exercise of an individual Member’s vote is in the best traditions of the House.
Resilience arrangements
104.The present system of lobby voting with pass readers, combined with the mass extension of proxy voting to as many as 150 Members at any one time, has resulted in a deeply unsatisfactory situation. While good progress has been made in reducing the time taken in divisions, we fear that this has been at the expense of social distancing requirements, which are difficult to observe under the conditions which currently prevail for divisions and the pressure to complete divisions swiftly.
105.In an earlier report we identified a number of potential issues in any division system that requires queuing.39 Many of these concerns are equally applicable to the current pass reader division method. Some of the issues we raised included concerns that Members would spend much of their time in Westminster queuing for divisions and an unfair pressure to minimise the number of divisions, which would disproportionately affect backbenchers seeking to press their amendments. We also stressed that these alternative division methods should be temporary.
106.The situation that arose on 2 June was thoroughly unsatisfactory. The Government had allowed the remote division order to lapse on 20 May. As such, when the House returned on 2 June, there was no provision for Members who were unable to attend Westminster to cast their vote. It is in that context, where a significant number of interested Members were excluded, that the Government proposed a return to physical divisions. The Chair of this Committee proposed an amendment which would retain remote divisions. This amendment was defeated.
107.Only two days later, on 4 June, the Government proposed extending proxy voting en masse to those Members who were “clinically extremely vulnerable” or “clinically vulnerable”. This was done without any prior consultation and with the barest prior notice to the Chair of this Committee and to the House authorities. The Government’s lack of consultation is evident in the fact that the Government had to return on 10 June to change the narrow criteria it had set for coronavirus proxy votes.
108.The present infrastructure supporting the pass-reader division system is barely adequate, especially in respect of proxy voting: significant development work is required to establish a system which provides sufficient support to the House’s existing system for recording and publishing the outcome of divisions.
109.On 2 June the House of Commons rejected a proposal to continue the system of remote voting in divisions. In our view, expressed in our report on the Government’s proposals for ending remote participation in the House’s proceedings, remote voting provided the most reliable and accurate means of conducting divisions while the division lobbies could not be used as normal and while a substantial number of Members were obliged to be absent from Westminster for public health reasons.
110.The Committee will in due course be considering the overall resilience of House procedures to large-scale disruption of the type experienced in March 2020. It would be prudent to plan for the effect on participation in House proceedings of further restrictions on freedom of movement later in the year if such restrictions are necessary to prevent or mitigate a ‘second wave’ in coronavirus infections and deaths.
111.The present system of proxy voting for coronavirus absences, as it is required to be operated under the current system of lobby voting, is barely adequate, is potentially unreliable and imposes disproportionate administrative burdens on staff. We recommend that the system be reviewed and replaced as soon as a more reliable alternative which is acceptable to the House can be found.
112.We also have significant concerns about the current system of lobby voting under physical distancing, which potentially increases the risk of virus transmission between Members.
113.In our view, the system of remote voting used in May was a more effective means of handling divisions in the House under conditions where the division lobbies could not be used in the traditional way and where a large number of Members were unable to attend for public health reasons. We recommend that the remote voting system be reinstated as a means of conducting divisions for as long as the division lobbies are unavailable for use in the traditional way.
114.In any event, should coronavirus conditions be reimposed in a way which again prevents attendance at Westminster on a substantial scale, the House ought to consider conducting divisions by the electronic remote system previously developed.
36 Procedure Committee, Procedure under coronavirus restrictions: the Government’s proposal for proxy voting for shielding Members, First Special Report of Session 2019–21, HC 429
38 Procedure Committee, Proxy voting and parental absence, Fifth Report of Session 2017–19, HC 824, para 53
39 Procedure Committee, Procedure under coronavirus restrictions: the Government’s proposals to discontinue remote participation, Third Report of Session 2019–21, HC 392, paras 44–52
Published: 10 September 2020