49.Introducing his proposals for virtual participation in debate, the Leader of the House indicated that the eligibility criteria for this type of participation would differ from the criteria for virtual participation in scrutiny proceedings (oral questions, urgent questions and statements). The motion tabled by the Leader requires the Speaker to draw up a scheme to permit virtual participation in debate by Members “who are certified by a medical practitioner as clinically extremely vulnerable (or equivalent) according to relevant official public health guidance issued in England, Wales, Scotland or Northern Ireland”.
50.By contrast, to be eligible for virtual participation in scrutiny proceedings, Members must self-certify, under arrangements set out by the Speaker, that they are unable to attend at Westminster “for medical or public health reasons related to the pandemic”. Members are thus not obliged to disclose information about their personal circumstances as a precondition of participation. This position is consistent with the recommendation in our earlier report on the discontinuation of remote participation:
We do 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. We therefore recommend that the House make provision for virtual participation in its proceedings for those Members who consider themselves unable to travel to Westminster for as long as the pandemic persists.
As we observed in our subsequent report on the Government’s initial proposals for proxy voting during the pandemic:
The Committee [has not sought] to identify the circumstances which might cause a Member to consider themselves unable to travel to the House to participate in proceedings. We [have] recognised that to do so would establish circumstances where Members, in order to participate in proceedings, would have to make disclosures of personal medical circumstances which in all other walks of life they would be entitled to keep private. It is for the House to reflect on whether disclosure of such conditions ought under present circumstances to be a precondition for participation in proceedings.
51.On 4 June the House agreed to a Government proposal that only those who were clinically vulnerable or clinically extremely vulnerable should be eligible for a proxy vote. Less than a week later, the House agreed to a further proposal which revised the criteria so as to bringing them into line with the eligibility criteria for participation in scrutiny proceedings.
52.The Leader’s proposal to restrict participation in debate to a subset of Members identified by reference to their clinical vulnerability runs directly counter to our general recommendations, and to a principle which the House appears hitherto to have accepted. A requirement to disclose extreme clinical vulnerability to a disease in order to be eligible to participate in a debate appears to us to be an invasion of privacy.
53.In justifying his proposal, the Leader appears to argue that debates on motions and on legislation are proceedings where virtual participation ought to be more strictly circumscribed. He has further argued that it is possible to introduce the eligibility criteria he proposes because the guidance issued by the NHS in England to the clinically extremely vulnerable has recently changed: those in this category are now advised to stay indoors and not to travel to work. On 16 November the Leader seemed to argue that all Members not specifically under clinical guidance to stay at home ought to come to the House if they wished to participate in debate.
54.During the course of proceedings on the Urgent Question on 16 November, several colleagues expressed concern about the eligibility criterion proposed. For Members resident in England, it was not immediately clear whether their eligibility would be determined on the basis of records of their condition held by the NHS or on the basis of clinical assessments made by medical professionals familiar with their circumstances. Members living with partners in the clinically extremely vulnerable category were advised that they would not themselves be eligible for virtual participation in debate. Members in the later stages of pregnancy were similarly advised.
55.It was not clear how the eligibility criteria might apply to Members in other nations of the United Kingdom, where different advice has been issued: for instance, the NHS England guidance on staying indoors is not reflected in the guidance presently issued to the clinically extremely vulnerable by the NHS in Scotland. The Leader confirmed that eligibility would not be extended to Members following directions to self-isolate issued by the NHS Test and Trace service.
56.The drafting of the Government’s motion has clarified some of the anomalies identified above, but by no means all. It remains the case that, under the Leader’s proposal, Members who wish to participate in debates on motions and on legislation by virtual means are in effect required to disclose that they have a medical condition which is considered to render them clinically extremely vulnerable to COVID-19.
57.We have remarked above on the likely capacity of the system supporting mixed participation in debates in its early days, as the operating model is developed and refined. In our view it is understandable if the number of virtual participants in a debate is limited from the outset, in the manner we have described above, until the House Service is confident about the capacity of the system in practice. But it is not appropriate to limit participation on the basis the Leader proposes.
58.We do not consider that there is a justifiable case for eligibility for virtual participation in debate to be determined by reference to clinical vulnerability. Nor do we consider it appropriate to determine eligibility on a basis different from that for virtual participation in scrutiny proceedings. We therefore recommend that the criteria for eligibility for virtual participation in all House proceedings be made uniform at the earliest opportunity.
59.Should the Government not be prepared to put our general recommendation in paragraph 58 above to the House, we alternatively recommend that a Member having received notification to self-isolate should also be permitted to contribute virtually to all House proceedings during their period of self-isolation.
60.A Member’s self-certification for any form of virtual participation on any sitting day ought to preclude attendance on the Estate that day. Attendance in the House when the dispensation is active flies in the face of the undertaking formally given to the Speaker when self-certifying. We again encourage all colleagues participating in self-certifying arrangements to familiarise themselves thoroughly with the obligations entailed in self-certification.
61.We note the Leader of the House’s argument, set out during his response to the Urgent Question on 16 November, that Members are considered to be key workers and so should attend work unless they are designated as clinically extremely vulnerable. Where divisions are concerned, the Leader has sponsored motions which now facilitate a number of colleagues to participate in scrutiny proceedings, and a very large number of colleagues to cast their votes by proxy, without applying a similarly strict test of eligibility. We consider that voting in divisions is as fundamental a part of the role of a Member of Parliament as attendance in the Chamber to participate. It appears to us that the Government is keen to facilitate the participation of its supporters in divisions, but rather less keen to facilitate contributions to debate from colleagues across the back benches.
62.We recommend that the operation of the system supporting mixed virtual and physical participation in debates be reviewed by the Speaker not later than the week of 14 December, and that the Speaker should subsequently communicate his findings to the House.
63.We further recommend that the Leader should make time available, as soon as possible after the House returns from the Christmas and New Year adjournment, for a debate on the arrangements for virtual participation, to arise on a substantive motion. This would give the House the opportunity to confirm or amend the arrangements as appropriate. The motion should self-evidently be treated as House business.
35 HC Deb, 16 November 2020, .
36 Procedure Committee, First Special Report of Session 2019–21, , HC 429
37 See The Scottish Government, (undated)
38 See a similar statement made in the Committee’s Fourth Report, , HC 392, para 87