Votes must be held on emergency and routine legislation. How to overcome the obvious practical difficulties as the pandemic spreads?by Hannah White / March 19, 2020 / Leave a comment
Like the rest of us, parliament has been slowly coming to terms with the implications of coronavirus. After a few days of busily burying their heads in the sand and assuring everyone that nothing has changed, MPs and peers finally bowed to the inevitable and began adjusting their working practices like the rest of the country. If parliament is to keep fulfilling its role and not grind to a halt under the weight of infection and self-isolation, it is crucial that it adapts—and rapidly.
Key among parliament’s responsibilities is to pass any legislation the government needs—both routine laws required to run the country (tax-levying powers must be renewed annually, for example) and emergency powers that the government decides it needs as the pandemic unfolds.
The government already has powers under the Public Health (Control of Disease) Act 1984 that include quarantine, detention and compulsory medical examination but, once used, these lapse after 28 days if parliament has not had an opportunity to consider them. The government has also responded to the Covid-19 pandemic by introducing new regulations. These are to allow health officials to impose restrictions on any individual or group who might spread the virus, to enable increased screening and to ensure all public health officials notify of any Covid-19 cases. More secondary legislation may well be required.
And the government has also said it will ask parliament to pass new primary legislation to deal with the wider effects of the virus—changing the rules for courts, health care settings, employers and so on. Parliament will obviously need to be sitting to do so, but there is considerable scope for it to adapt its procedures to reduce the risk of spreading the virus without breaking with any significant constitutional norms.
With several MPs confirming they have tested positive for the virus and guidance on social distancing being to keep two metres away from other people, MPs seem now to have accepted that squashing into the chamber is no longer sensible. We have seen the odd sight of Boris Johnson taking Prime Minister’s Questions in a quiet and sparsely populated Commons. Wherever possible, votes which require MPs to rush through the confined spaces of the division lobbies together are being avoided by discussions between the parties.
Some votes may prove unavoidable. Although the case for introducing electronic voting has been raised once again, in the current circumstances it will be much quicker and simpler for parliament to increase its use of the existing “deferred division” procedure. Certain votes are already conducted on paper—once a week, if any votes have been deferred, MPs record their votes on a ballot paper and hand it in to a clerk in the division lobby between certain hours. This process could be made safer still by moving it online.
As the pandemic peaks, travelling to London is going to look less and less sensible for lots of MPs, especially if their constituents are on lockdown. Many who fall into the high-risk categories—if they are pregnant, have certain medical conditions or are over 70—would be flouting medical advice to do so. This is a particular issue for the Lords, where the average age is 70.
If parliamentarians can’t sensibly get to London, then the question arises of how low numbers could drop and the Commons keep sitting. The rules say that the Commons needs a minimum of 40 MPs to be present if it is voting. But it could manage with fewer still if political differences were put aside and business went through without votes. Whether the decisions made by such a depleted House could command legitimacy is less clear cut.
And parliament’s responsibilities clearly go beyond passing legislation. At a time of national crisis, when the government is taking greater powers to control the population, lowering regulatory standards to relieve pressure on key public services and dramatically loosening the country’s purse strings to support businesses threatened with collapse, parliament’s scrutiny function is also crucial.
For as long as parliament continues to sit, ministers will presumably continue to answer questions and make statements to the House. However low the numbers in the chamber, the dispatch box will continue to provide an opportunity for the government’s decisions to be explained and tested. This—alongside daily briefings from the prime minister and his scientific advisers—will presumably be important for public confidence in the coming weeks and months.
The work of select committees could be more severely affected. We have already seen key figures involved in the Covid-19 response come to the select committees to give evidence. But this might prove impossible as the pandemic progresses. Most committees have a quorum of around a third and they do not have the power to meet virtually. If parliamentarians are ill, self-isolating or unable to travel to Westminster, select committees may be unable to meet and conduct the detailed scrutiny that can improve policy and test individual decision-making. Urgent consideration needs to be given to how MPs and peers could participate in committee meetings without being physically present, or to reducing quorums.
While the Covid-19 pandemic seems overwhelming, keeping parliament going is important too because of all the other complex and important things that government is still doing. Remember Universal Credit? The Spending Review? The net-zero target and COP26? The fact the Brexit transition is currently planned to end at the end of 2020?
The government needs parliament to achieve much of what it is trying to do, but also to provide the essential checks and balances which will help maintain public confidence in its efforts. Parliament needs to overcome its reactionary tendencies fast enough to take responsibility for its role in fighting the virus. It must adapt to fulfil its vital functions—even if this means operating in novel ways.