Back to the future? Procedure after coronavirus restrictions Contents

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Our report

Introduction

1.On 22 February, the Prime Minister made a statement on the Government’s plans to ease restrictions in place in various forms since late March 2020.1 The easing of restrictions would be subject to four tests, relating to the deployment of vaccinations, their efficacy, pressure on health services and the emergence of new COVID-19 variants. The Prime Minister set out the Government’s intention to conduct a series of reviews, the first of which

will assess how long we need to maintain social distancing and face masks. This will also inform guidance on working from home, which should continue wherever possible until this review is complete, and it will be critical in determining how Parliament can safely return in a way that I know hon. Members would wish.2

The House of Commons Commission agreed a roadmap for the House at its meeting on 8 March 2021 in terms consistent with the Government’s roadmap for the country.3

2.It is important to note that the practice and the procedure of the House has changed in a number of ways since March 2020. Some of these changes have been very visible, while others have been more subtle. The temporary orders passed by the House have covered the variation or suspension of Standing Orders where this has been necessary. However, many of the most visible changes such as limitations on attendance in the Chamber and the introduction of published call lists involve no change to Standing Orders and have rather been made under the authority of Mr Speaker.4

3.Throughout the pandemic, there has been widespread agreement of the need for the House to act in a manner consistent with the public health and legal requirements in place across the whole of the UK, including country and region-specific restrictions.5 In a representative democracy, it is clear that Parliament should set an example and show leadership at a time of national crisis. But views differ within the House on what setting an example and showing leadership looks like. Some of the differences of opinion on the House’s response to the pandemic, particularly on virtual participation, come not from any fundamental disagreement but differences of opinion on how best and how precisely the House should reflect the society it serves.

4.The Leader of the House has told us that he values our insight when he is considering how to put decisions to the House on changes to procedure. On 1 February, he said that “the views of the Procedure Committee are always important, and there is time for you between now and then to express any views that you have on how you think it should be unwound, which the Government will of course listen to”,6 and that “the Procedure Committee plays an invaluable role in reminding people of that and in setting out how we get back to normal, but also in getting the consent for any permanent changes that people may think should come about”.7 It is with those twin aims in mind that we have approached this report. We publish this, our Eighth Report in this Session, and the sixth in our ongoing inquiry into procedure under coronavirus restrictions, with the intention of informing the House in advance of 30 March, the date at which temporary orders related to the pandemic are set to lapse, although we take note of the Leader’s comments at Business Questions on 25 February that the provisions would likely be extended beyond 30 March.8

Events since the publication of our Sixth Report

5.On 19 November 2020, the Chair made a statement on the launch of our Sixth Report on Procedure under coronavirus restrictions: virtual participation in debate.9 In our report we concluded that “on a matter of such importance to the House, the Government should have facilitated a debate and a decision on the proposal before the House in a way which would have allowed Members to test the House’s support for alternative approaches.”10 It is a modest proposition that the House has a reasonable expectation of having its say on the arrangement of its own affairs. That the Government enjoys significant initiative in the tabling and organisation of business is not in question.11 But this initiative should be balanced by ensuring that the way in which the House regulates itself allows for Members to express and test a range of views.

6.When the motion on Virtual Participation in Debate was reached—somewhat unexpectedly—before the moment of interruption on 24 November, a debate took place for which few Members (including the Leader) had the opportunity to prepare a speech.12 The debate continued for around two hours until 7.00 pm, but as debate cannot continue after the moment of interruption (7.00 pm on the day concerned) and opposed decisions cannot be taken, no decision was reached. The Government could easily have given notice of its motion, and, after discussion with through the usual channels, arranged for the business to be governed by a Business of the House motion allowing a reasonable time for debate and providing for the question, and any amendments selected thereto, to be put after the moment of interruption.

7.The events of 24 November usefully illustrate the various features of the management of business in the Chamber. First, that the means exist for any government to exercise its stewardship of the Order Paper responsibly, if it is willing to use them. Not moving substantive items of business, combined with large-scale withdrawals from call lists, creates a disorderly environment. This environment prevents the House from performing its core roles effectively.13 Second that, with a large number of proxy votes in place, it is difficult to imagine how a division could have been conducted in which each vote was cast on the basis of a specific instruction when from the Order Paper it was not at all clear that a decision would be reached before 7.00 pm. As a related but separate matter it had, until fairly recently, been a convention that ‘House business’ was not whipped. This is a convention to which the House should return. Third, that tabling substantive motions relating to House business as a ‘nod or nothing’ decision artificially curtails the House’s ability to express itself. This practice introduces an undesirable element of unpredictability to the House’s affairs.

8.We call on the Government to commit to protect substantive motions on House business with a Business of the House motion which reserves time for debate and decision.

9.As was pointed out after the debate had concluded,14 the Government could have brought the debate back for decision in the days that followed. The Chair made a Point of Order to that effect following the Business Statement on 15 December,15 reiterating her call in a letter to the Leader of the House following Business Questions on 17 December.16 The Leader replied on 21 December announcing the Government’s intention to extend virtual participation to include debate without reference to clinical vulnerability or any other conditions. This change in approach was driven by a wish to “[reduce] physical attendance on the estate, whilst allowing members to continue to contribute to business”.17 It was made in light of rising case numbers, heightened comparative transmissibility of a new coronavirus strain and large parts of the South East of England entering Tier 4 restrictions.

10.In our Sixth Report, we wrote that:

the House Service approach to the introduction of hybrid proceedings was based on the minimum viable product. This was a sensible approach, and no doubt contributed substantially to the successful delivery of those proceedings in a highly unfamiliar environment. We would expect a similarly measured approach to be taken to the introduction of mixed virtual and physical participation in debate in this case.18

11.Events, however, took a different course and no such measured approach proved possible. The House renewed arrangements for virtual participation over the Christmas period, with the Speaker accepting the Government’s request for a recall on 24 December and the House sitting on 30 December to take all stages of the European Union (Future Relationship) Bill.19 By failing to pursue the reintroduction of virtual participation earlier in the month, the Government introduced an unnecessary element of risk into proceedings on the Bill. The motion on Virtual Participation in Proceedings during the Pandemic (Temporary Orders) (No. 2) was agreed to without debate with only brief comment from the shadow front benches.20

12.The Leader’s letter to the Committee made clear that the Government tabled its motion because of specific circumstances relating to the pandemic. The letter also provided an insight into the wider factors influencing the Government’s decision-making processes for procedure under coronavirus restrictions. These were:

a)“Parliament can continue to do its important work”

i)“business in the main chamber, including scrutiny of the Government and the legislative agenda, can progress as effectively as possible under the new restrictions”21

ii)“Parliament is able to carry out its vital legislative functions and play this key constitutional role”

b)“constituents are best served when Parliament meets physically to the fullest extent possible”

c)“need to lower the transmission of this new strain of the virus”

These factors can be summarised as Delivering essential parliamentary functions, Meeting physically where possible, and Managing infection risk on the parliamentary estate. We consider each of these factors in turn.

13.On the first factor, Delivering essential parliamentary functions, we note that at every stage since March 2020, the House has been able to debate, legislate and hold the Government to account.22 This is both because parliamentary procedure is inherently flexible and adaptable and because Members and House officials have found creative solutions to procedural and technological obstacles. That said, at times, the pandemic has meant that aspects of the House’s essential functions have been limited either by time or breadth of participation. The breadth of participation has shrunk in accordance with the number of Members able to participate physically on the estate or virtually in accordance with decisions of the House. The depth of proceedings has been diminished through the loss of real-time feedback from live participation and loss of aspects of spontaneity.23 These compromises, taken consciously, have been necessary to ensure the continuity of proceedings. But while a loss of depth to hybrid proceedings is almost inevitable and undesirable, improved technology has mitigated the limitations on capacity experienced earlier in the pandemic. This is the result of huge efforts from across the House Service, especially in the Broadcasting and Digital teams, for which the Committee is very grateful.

14.The second factor, Meeting physically where possible, is one that commands widespread support within the House. Restrictions on proceedings came into effect just over 40 sitting days into a new Parliament, which has limited the ability of newly elected Members to learn how the House works outside of pandemic circumstances. In addition to essential parliamentary functions, much incidental and ancillary activity, such as the opportunity to speak informally to colleagues has fallen victim to the pandemic.

15.The House’s ability to meet physically is, as the Leader noted in his letter, balanced with the third factor of Managing infection risk on the parliamentary estate. This responsibility is held by the Speaker and Clerk under the direction of the House of Commons Commission. Experience since March 2020 has shown that making decisions based on assumptions about the likely (or desired) course of the pandemic is a process fraught with risk. The House should have the opportunity to express its view (or more accurately, views) on where the balance between these factors should be struck. We note that at each stage of the pandemic, the House Service has found technological solutions which have been applied through the inherently adaptive and flexible nature of the House’s procedure.24

16.We endorse the factors set out by the Leader of the House in his letter to the Chair of 21 December as determining the Government’s approach to the management of the House during the pandemic. We note that not all of the matters concerned are within the Government’s control. However, we believe that there will be additional principles and factors that should be taken into account when we make decisions on the House’s procedure.

17.The Chair wrote to the Speaker on 18 December.25 In her letter, the Chair set out four issues:

a)The relationship between procedural and practical considerations

b)The consequence of temporary orders being allowed to lapse

c)Changes to practice which could be considered for retention

d)Changes to the nature of proceedings under pandemic restrictions

18.We received a memorandum from the Clerk of the House on 15 January,26 which for ease of reference is reproduced in full in the second appendix to this report. We are grateful to the Clerk and other House officials for the considerable detail offered in the memorandum. We set out below a few key passages which have informed our subsequent questioning of witnesses:

• Requirements to limit attendance in the Chamber specifically and on the parliamentary estate in general “will not be removed suddenly and all at once. If continuing public health requirements lead to a managed and gradual withdrawal of some restrictions, it might make sense for there to be a managed transition from the arrangements put in place to address them.”27
• There has been a longstanding presumption of physical attendance for the purposes of participation in proceedings, but this presumption is not without its exceptions.28
• The introduction and sustainment of hybrid proceeding has involved a great deal of practical change in the day-to-day operation of the House Service, which has adapted rapidly and effectively to new modes of working.29
• The barriers to further advances in hybrid proceedings (such as greater spontaneity) are not primarily technological but in the effective integration with the Chamber and the impact on the nature and quality of proceedings.30
• The current system of card reader voting and widespread proxy votes, although somewhat streamlined from its earliest incarnation, involves several manual steps. EVEL divisions are not possible under the current arrangements.31
• A temporary order was passed on 22 April to enable remote by-elections for the Chairs of the Business, Energy and Industrial Strategy Committee and the Committee on Standards.32 A similar order would be needed for any subsequent by-election to take place in the same way.33
• Virtual participation currently takes place under an order of 30 December, which amended the order of 4 June 2020 (as amended on 22 October), and the principle of parity between Members participating physically and Members participating virtually no longer applies.34
• The laying of papers has since March taken place by email, which has increased the workload of the Journal Office, and introduced the potential for errors to be made by bodies laying papers before Parliament.35

19.After we had received the memorandum, we held an oral evidence session on 27 January with the Clerk, the Managing Director of the Governance Team (and head of the House’s COVID-19 response) and the Strategic Director of the Chamber Business Team.36 We published the Government’s response to our Sixth and Seventh Reports in our Fourth Special Report on 29 January,37 and on 1 February took oral evidence from the Leader of the House.38 In addition to our public sessions, we held a private meeting with Mr Speaker on 10 February, shortly before the House went into the February recess. In these sessions we explored three principal areas:

• The mechanics of procedural change: The relationship between decisions of the House, changes made under the authority of the Speaker and changes in Member behaviour and conduct.
• The availability of a political mandate: The ability and willingness of the House, the Government or Commission to set a direction and provide political authority for a course of action.
• The evolution of the House’s response to the pandemic: Whether the presumption of a ‘hard reset’ to pre-pandemic proceedings is either possible or desirable; whether certain changes to practice could be identified as candidates for longer term adoption; and the ongoing impact of public health restrictions on physical presence.

20.This report deliberately focuses on changes to procedure since March 2020 and does not attempt to codify the House’s wider pre-pandemic norms. The conventions and courtesies of the House arise from the nature of proceedings and have been somewhat disrupted both by changes to procedure since the pandemic, and the limited opportunity for newly elected Members to experience pre-coronavirus proceedings. We see this as a matter principally for Mr Speaker and his Deputies, under whose authority guidance is issued. It may be that there is a role for training on procedure and House customs at a point when more Members can be accommodated in the Chamber.

The mechanics of procedural change

21.Changes made to the procedure and practice of the House since the start of the pandemic have been introduced on the explicit basis of their being temporary and time limited.39 On 1 July the Leader made the case that a full reversion was necessary:

lots of things have been agreed on the basis that they are temporary, and it would be improper to make those permanent without restoring the status quo ante first40

22.This was a point which he reinforced in a more nuanced form on 1 February:

I feel that, in good faith, people like me said to Members who were very suspicious of these changes and didn’t want them to happen, “Don’t worry, this is temporary; we will go back to normal.” I would be cheating them if, in a widespread way, I didn’t do my best to facilitate—caveated by what I said a moment ago about it being a decision for the House, rather than me—and make my best efforts to make sure it goes back to normal, before decisions on permanent changes are made.41

23.In our First Report we ourselves recommended a period of six weeks for initial review and concluded that the “present package of modifications is proposed in the context of an unprecedented national emergency and is not to be seen as a basis or precedent for changes to procedure and practice outwith this situation”.42 We reiterated this point in our Third Report.43

24.We stand by our earlier conclusions. But we, as is the Leader, are clear that these are decisions to be taken properly by the House and not by the Government or this Committee. In our Third Report, we indicated our intention to “assess all temporary procedures and practices which have been introduced, to establish whether there is any merit in adapting them for use by the House once coronavirus restrictions have ceased”.44 At the end of May, our Third Report envisaged a more nuanced course to the pandemic.45 In March 2021 it seems more likely that, though suppressed by a successful programme of vaccinations and greater understanding of transmission risks, the possibility of new strains means that a residual risk will be present for some time yet. We share the Leader’s caution that “[i]t is a dangerous business making forecasts about where this pandemic will go and therefore how flexible one can be about doing things.”46

25.In accordance with the Government’s plans for a cautious and steady easing of lockdown restrictions, we call for the temporary orders to be extended to the beginning of stage 4 (currently 21 June).

26.We recommend that the House reverts to all aspects of its pre-pandemic practice and procedure.

27.Substantive changes to procedure and practice should be made by the House on a motion put down with sufficient notice to allow for the proper tabling and selection of amendments. Anything else curtails free expression and potentially hides the consensus on procedural change that is in everyone’s interest to find.

The availability of a political mandate

28.We explored the question of a political mandate with witnesses on 27 January. Matthew Hamlyn explained that

[t]he mandate is to try as far as possible to replicate the normal physical Chamber in a hybrid form. […] There is an implicit mandate continually to think how we can introduce things that make it more like the “before times” […] Had we had a mandate in April to design something that was going to work for a year and a half or a year, we might have started from a different place.47

29.We see some of the limitations of the hybrid model when we consider how to manage interventions between physical and virtual Members without disrupting too greatly the natural flow of proceedings, and when considering the interaction between the Member “on their feet”, the Member seeking to intervene and the occupant of the Chair.48 The Clerk went on to explain how the House Service sought to balance the risk of wasted work and ensure that work undertaken was proportionate and did not involve vast expenditure at risk.49

30.The implicit (or general) mandate that Mr Hamlyn spoke of is contingent upon specific, explicit mandates coming forward from the House. On several occasions since the start of the pandemic the House Service has had to respond rapidly to a specific requirement which has emerged only at the last minute, for introduction soon thereafter. This has placed significant burdens on a relatively small number of staff with key operational roles in terms of the delivery of essential broadcasting and procedural functions, often during recesses. Making changes to the operation of the Chamber at such pace not only increases staff-based risk, but also means that the finished product is more limited than would otherwise be the case, and introduced with less testing than would give greater confidence in its operation. This can be seen from the original introduction of the hybrid model in April 2020 and the limitations in place during January 2021.

31.The Leader accepted that there was a case to be made for the development of virtual interventions on the basis that it might be useful in the future:

I am not hostile to that at all. The evidence you took last week is very interesting about the technological capability to do it, and about the practical difficulties. I agree with you. The broadcasting team have worked miracles. It works much better than it did before. That does not mean that there are not any practical difficulties. Technology improves, and as technology improves things become possible that one thought were not possible before.50

While the technological side of virtual interventions may be manageable, care would need to be taken on their integration with physical proceedings, which may not be straightforward.

32.We recommend that the House Service is given an explicit mandate from the Commission to extend the scope of its development of hybrid proceedings and the resources necessary to separate it from the day-to-day demands of running the Chamber. This does not presuppose further extension in either scope or duration of hybrid proceedings, but would serve to de-risk aspects of hybrid sittings and enable ancillary benefits (for example within the House’s business continuity plans or as part of preparations for Restoration and Renewal) to be realised.

33.Difficulties in establishing a political mandate have arisen because of the House’s interwoven decision-making authorities. Decisions related to the House’s response to the pandemic are variously the responsibility of the Commission, the House, the Speaker and the Government.51 As the Leader of the House told us:

when I say that the House decides, you point out that I have to put down a motion, but actually the House decides informally as much as formally. It decides because people make their views known. The Whips in both parties get representations from Members as to what they want. It isn’t simply that the Leader of the House determines.52

While this may be an accurate summary of routine decision making in the House, it may not be a sufficiently robust process to make significant decisions on procedural matters. We would favour greater formality in the processes by which views on such matters are expressed and decided on by the House.

The evolution of the House’s response to the pandemic

Card reader divisions

34.The House’s previous use of the division lobbies was identified as a risk early in the pandemic.53 The House used both remote and Chamber-based forms of voting before settling on a system using card readers based in the division lobbies, subsequently supplemented by an extension of proxy voting.54 We explored the potential of card reader divisions as a permanent alternative to the pre-pandemic system of division clerks at desks in the lobbies with witnesses on 1 July, approximately a fortnight after their introduction.55 We returned to the subject on 27 January in the context of widespread proxy voting, with only around 40 Members taking part physically in divisions. The Clerk expressed his own support for the retention of card readers in the lobbies as an alternative to division clerks,56 which was echoed by the Leader.57 Card reader is not without its challenges, as Matthew Hamlyn explained to us.58

35.Standing Orders Nos. 83J to 83X relating to ‘English Votes for English Laws’ were originally suspended under the terms of the order of 22 April 2020.59 They have been subsequently disapplied as part of a wider package of pandemic-related matters by the order of 2 June 2020,60 which was extended on 1 July to 2 September,61 on 2 September until 3 November,62 and finally on 22 October 2020 to 30 March 2021.63 We pressed the Leader on the Government’s plans for the EVEL Standing Orders in the context of our inquiry into the procedure of the House and the territorial constitution on 1 February, but to little effect.64 It is not currently possible to conduct an EVEL division with the system of card readers and proxies.65

36.We are not convinced that, with an effective card reader voting system in place, the conduct of EVEL votes should be any more difficult than with tellers. Consistent with the Leader’s assurances above on returning to the status quo ante we urge the Government to reinstate the EVEL Standing Orders as soon as possible. We will consider this issue further and whether any changes to the procedures are desirable during our inquiry into the procedure of the House of Commons and the territorial constitution.

Arrangements for select committees

37.Arrangements for select committees to conduct more of their business virtually were introduced in an Order of 24 March 2020:

Box 1: Excerpt from the Votes and Proceedings, 24 March 2020

Select Committees (Participation and Reporting) (Temporary Order) Ordered, That:— (1) for the period specified in paragraph (4) of this Order, the following measures shall have effect in relation to the proceedings of any select committee which has the power to report from time to time; (2) members of any select committee to which this Order applies may participate in select committee proceedings through such electronic means of communication as have been approved by the Speaker; (3) the Chair of any select committee to which this Order applies may report to the House an order, resolution or Report as an order, resolution or Report of the Committee which has not been agreed at a meeting of the Committee, if satisfied that all members of the Committee have been consulted about the terms of the order, resolution or Report and that it represents a decision of the majority of the Committee, and (4) this Order shall have effect from the date that it is made until 30 June 2020, save that the Speaker may extend its effect by notifying the House that in his opinion it is expedient that these arrangements continue in force until a specified later date; more than one such notification may be given, but each such notification shall be given no less than a week before the expiry of this Order or any subsequent extension to it.—(James Morris.)

Source: Votes and Proceedings, 24 March 2020, item 15

38.Unlike other temporary orders, the power to extend the Order lies within the discretion of the Speaker. Mr Speaker has indicated that he is content for the change to be made permanent.

Capacity in the Chamber

39.The Clerk of the House was clear that the biggest constraint on the spontaneity of proceedings was the size of the Chamber and speculated that social distancing might be one of the last things to go.66 The Leader acknowledged that “[a]s long as the number of seats in the Chamber is restricted, we will need to have call lists”,67 and on 25 February told the House that

the road map that the Government have set out for the country at large will obviously have an effect on what is going on in this House. Particularly important for the Chamber will be any changes on social distancing, because this Chamber will not be back to full, proper operation until the social distancing measures have been altered. That will be fundamental to any decisions that we have to make.68

We previously concluded that we did not “think it is reasonable for Members, and by extension the constituents they represent, to be excluded from proceedings of the House because they choose or have been advised to follow Government advice on how to protect their health during a pandemic.”69

Sittings in Westminster Hall

40.In early January, the new strain of coronavirus created the need to further suppress attendance on the parliamentary estate. In response, the Leader “reluctantly” tabled motions to suspend sittings in Westminster Hall and cancel sitting Fridays without a firm date for their resumption. The hon. Member for Christchurch tabled amendments to both motions but did not press them to divisions on the basis of assurances given by the Leader during the debate. The Government had put motions on the Order Paper on 12 January as a ‘nod or nothing’ decision but the amendments acted as blocking motions.70 The House agreed to the motions without division on the basis that alternative arrangements would be made.71 Members of this Committee were concerned that suspending sittings in Westminster Hall and cancelling sitting Fridays would further limit the ability of backbench Members to represent their constituents and hold the Government to account.

41.The Clerk told us on 27 January that sittings along the lines of Westminster Hall could take place in an alternative room on the parliamentary estate without significant adaptation.72 The Leader of the House subsequently acknowledged that technology was not a leading limitation on a hybrid Westminster Hall, but that he would need assurance that a proposal to resume Westminster Hall would meet with general approval.73 The Chairs of this Committee, the Petitions Committee and the Backbench Business Committee wrote signalling their support on 11 February.74 The Government signalled its intentions to resume Westminster Hall sittings in a hybrid model in Boothroyd Room with effect from 8 March in a motion passed on 25 February.75

Conclusion

42.At a much earlier stage of the pandemic the Leader drew attention to the wider procedural landscape:

We have had the most extraordinary period of flux in the understanding of procedures, and the Procedure Committee could be enormously helpful if it were to look at how things have changed over the last couple of years, not just in relation to coronavirus and how we have had to adapt, but at things that happened before that, to see whether we need any areas of clarification […]

When I was on the Procedure Committee, we looked at a revision of the Standing Orders, simply to tidy them up and get them back into a coherent whole, because they have been edited and sub-edited so much over the years that they are not in the order that one would like. We did that work very thoroughly, and the then Government just put it in a drawer and ignored it. It would be a very useful exercise to review that work so that we could have a more orderly book of Standing Orders.76

43.The public business Standing Orders have not been systematically reviewed for several years. We agree with the Leader that it would be a useful exercise to review that work and this is a matter to which we will turn our attention in the next Session.