115.In addition to the situation-specific amendments discussed above, we have considered a number of general issues arising from the provisions of the temporary order of the House governing the operation of proxy voting under the pilot.
116.The current temporary order governing proxy voting excludes voting for motions under section 2(2) of the Fixed-term Parliaments Act 2011. This is a motion “That there shall be an early parliamentary general election” which requires a two-thirds majority to pass. It is this specific form of motion on which proxy votes are currently unavailable.
117.It was initially thought that allowing a proxy vote for such a decision, which requires a certain majority specified in legislation, might leave a decision of the House on such a motion open to judicial review if the decision turned on the use of proxy votes. Our predecessor Committee said:
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.
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.
118.Three motions for an early general election under the provisions of section 2(2) of the 2011 Act were tabled in 2019. Notice of each motion was typically given shortly before the rise of the House on the previous sitting day. The interaction of this practice with the proxy voting scheme was unclear and cumbersome and led to significant inconvenience and confusion. It was not immediately clear whether a proxy vote in operation had to be formally suspended, through a Speaker’s certificate, to allow the Member carrying the proxy vote to vote in person in any division on the no confidence motion. In the circumstances it proved difficult to administer the necessary arrangements smoothly.
119.Subsequent written evidence from the Clerk of the House suggests that the risk of a successful application for judicial review are very low. He wrote:
My own view is that the likelihood of this matter being actively considered by a court is extremely low, but it is not zero. The Procedure Committee itself expressed the view that there might be some issues on which it would not be appropriate that proxy votes should be cast (see paras 81–83 of their report).
The question for the committee is whether that small, but not entirely negligible, risk is worth taking in order to provide a proxy voting regime which allows Members absent from the House by reason of childbirth or care of an infant or newly adopted child (or, if the scheme is to be widened in scope, absent for other reasons) to participate equally with Members present on the estate in decisions of great importance.
120.We are confident that the courts will not seek to question the outcome of any votes which utilised the proxy voting scheme. It is clear that this would constitute a proceeding in Parliament and is covered by parliamentary privilege.
121.We recommend that any standing order making permanent provision for proxy voting for parental absence should not exclude votes on motions under section 2(2) of the Fixed-term Parliaments Act 2011 from the scope of that provision.
122.Paragraph 2(c) of the temporary order of 28 January 2019 makes provision for the exercise of proxy votes in the election of the Speaker, Deputy Speakers, and select committee chairs elected under Standing Order No. 122C. It does not provide for the exercise of a proxy vote for the election of the Chair of the Backbench Business Committee.
123.We recommend that any standing order making permanent provision for proxy voting for parental absence should, in addition to the provision in the temporary Order of 28 January 2019, provide that proxy votes may be exercised in any election for the position of Chair of the Backbench Business Committee under Standing Order No. 122D.
41 The motions were moved on 4 and 9 September and 28 October 2019 respectively.
42 House of Commons Service (), paras 6 and 7
Published: 10 September 2020