Professor Lord Norton of Louth, Professor of Government, University of

Hull – written evidence (CIC0002)

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

1. I am submitting this evidence in an individual capacity, drawing on my academic specialisation in the constitution and Parliament and my experience as a member of the House of Lords. The paper identifies the impact of the coronavirus crisis on the Parliament in fulfilling its core constitutional role as a deliberative assembly, identifies the challenges faced by both Houses, adumbrates the attempts to mitigate the problems, outlines what more may be done to tackle the challenges, as well as the consequences of the response to the crisis for future crises and for the restoration and renewal programme of the Palace of Westminster. ______

2. This submission focuses on the implications of the coronavirus crisis for a core relationship at the heart of the constitution, especially in a liberal democracy, and that is the relationship between the executive and the legislature.

3. The relationship is governed by the fact that the executive is dependent on the legislature to approve demands for supply and measures of public policy. Legislatures are not so much law-making bodies – they do not draw up the principal measures laid before them – as law-assenting bodies.1 The executive proposes legislation, but it is not law until it receives the assent of the legislature. That is why legislatures are core institutions of the state.

4. In some, typically one-party, states, the legislature may do little else than formally go through the motions of giving assent. In democratic nations, legislatures are typically multi-functionally and functionally adaptable bodies, adapting to a changing political environment. However, what is common to them, and always has been, is that assent is preceded by deliberation. Legislatures are deliberative assemblies. They gather to deliberate. That statements embodies function and form. They are inextricable. Members come together to deliberate and they do so in a defined assembly. There is a chamber and it is this body in which the power to give assent resides. The shape of chambers varies, and has varied, enormously. This may reflect both the size of the membership and the nature of the political system (consensual or adversarial), but the one uniform feature is a physical entity that is the chamber. Some legislatures have two chambers (the South African parliament briefly had three) and the European Parliament may meet in different chambers, but core to

1 See P. Norton, ‘General Introduction’, in P. Norton (ed), Legislatures, Oxford: Oxford University Press, 1990, p. 1.

1 the legislature is members gathering together in a defined physical space to debate and, as appropriate, vote.

5. As legislatures have become more complex and demands made of them grown, they have utilised committees. These are now essential to most legislatures, but committees are agents of the chamber and, with rare exceptions, are not vested with the power to make law independent of the chamber. Committees fulfil a range of functions, but they serve the chamber and rely on it to approve or enforce recommendations they make.

6. Furthermore, deliberations in the chamber are rules based. Rules provide certainty and order. They also constraint the executive.2 Ministers comply with the rules to get their business. Rules, as well as precedent and practice, may be extensive. The rules, though, are based on the physical coming together of members collectively. Moving away from meeting physically may require new or adapted rules. That raises the problem of how new rules are to be created.

7. There is a growing recognition of the importance of space in legislatures3 and how it is used.4 This recognition is growing at a time when the coming together of members physically in a chamber is rendered difficult if not impossible by the coronavirus crisis.

8. The crisis challenges fundamentally the capacity of the legislature to operate as a deliberative assembly. The challenge is greater the larger the number of members. With modern technology, a legislature with a small number of members may be able to meet virtually and deliberate as a collective body. At the start of April, the States Assembly of Jersey became the first Commonwealth legislature to hold a virtual assembly. Such legislatures have the benefits that attach to committees meeting virtually. Some larger parliaments, such as Brazil, have also made provision for virtual plenary sessions. Where legislatures have sought to meet physically, it has been with a limited number of members in the chamber and reduced volume of business. This violates the basic principle of a deliberative assembly in that not all members have the right to be present and to seek to speak. They may not exercise the right – they may be away – and they may not seek to speak or, even if they do, not be selected. The principle, though, is that they are entitled to attend to seek to speak. The nature of deliberation, certainly debate, is that there is the opportunity to intervene and to engage.

2 P. Norton, ‘Playing By the Rules: The Constraining Hand of Parliamentary Procedure’, The Journal of Legislative Studies, 7 (3), 2001, pp. 13-33. 3 See especially C. T. Goodsell, ‘The Architecture of Parliaments: Legislative Houses and Political Culture’, British Journal of Political Science, 18, 1988, pp. 287-92; J. R. Parkinson, Democracy and Public Space: The Physical Sites of Democratic Performance, Oxford: Oxford University Press, 2012, P. Norton, ‘Legislatures and the Courts: The importance of Place’, Journal of International and Comparative Law, 4 (2), 2017, pp. 171-87, M. Flinders et al, ‘The Politics of Parliamentary Restoration and Renewal: Decisions, Discretion, Democracy’, Parliamentary Affairs. 71 (2), 2018, pp. 144-68; and L. M. McCarthy-Cotter, M. Flinders and T. Healey, ‘Design and Space in Parliament’, in C. Leston-Bandeira and L. Thompson (eds), Exploring Parliament, Oxford: Oxford University Press, 2018. 4 P. Norton, ‘Power behind the Scenes: The Importance of Informal Space in Legislatures,’ Parliamentary Affairs, 72 (2), pp. 245-66.

2 9. The present crisis presents a challenge to the legislature as a deliberative assembly in a way that has not happened in modern history. (In the context of the UK, this means essentially since the monarch lost the political capacity to govern without the legislature.) Even in the Second World War, both houses met physically, be it in Church House or the Commons in the Lords chamber and the Lords in the Robing Room, and they operated as deliberative assemblies.5 When part of the ceiling in the House of Lords collapsed in the 1980s, the House met briefly in the Royal Gallery. In other words, both Houses have adapted and continued to operate physically and with all members who wished to do so attending and seeking to participate.

10. The challenge to Parliament is therefore one of how to adapt to an unprecedented crisis. Limiting the capacity of the legislature to meet and deliberate enhances the position of the executive. The government continues and has at its disposal both prerogative powers (exercised through prime ministerial advice to the sovereign) and statutory powers, including those embodied in measures designed to cover emergencies. It can therefore govern without the legislature coming together to debate and challenge it. If the legislature is not meeting, ministers may avoid being subject to questioning. Press conferences are no substitute for engagement with the chamber. Ministers may preside at press conferences and decide who to call. In the House of Commons, that power rests with the occupant of the chair and in the House of Lords is formally exercised by the House itself. The rules enable members to question and press ministers.

11. The opportunity to debate intensively and directly is especially important when Government seeks to expedite legislation. Parliament is limited in dealing with emergency legislation, where Members are dispersed, cannot discuss quickly among themselves or rush to discuss amendments with officials. Physical proximity and availability are important for members to respond expeditiously to important measures Government are seeking to push through on an accelerated timetable. Although select committees that report on bills are able to produce authoritative reports under considerable time pressures, members are not able to exploit the reports in the way they can when the House is meeting physically.

12. Furthermore, in meeting collectively, it is possible to get the mood of the House and for members to intervene and respond without giving notice. The rules provide a framework for debate, but members operate within those rules to engage. Ministers rest on the House not only to get their business, but for their own advancement. Parliamentary skills are at a premium. In the UK, the mode of the executive-legislative relations that dominates is the opposition mode.6 The rules of the House of Commons are premised on there being two bodies facing one another, that is, the Government and the Opposition. Ministers stand ready to respond, not least to potentially critical interventions. The Opposition is core to ensuring sustained and critical scrutiny of the executive.

5 See P. Norton, ‘Winning the War but Losing the Peace: The British House of Commons during the Second World War’, The Journal of Legislative Studies, Vol. 4 (3), 1998, pp. 33-51. 6 A. King, Modes of Executive-Legislative Relations: Great Britain, France and West Germany’, Legislative Studies Quarterly, 1 (1), 1976, pp. 11-34.

3 13. How, then, to maintain or replicate this when members cannot come together collectively? This is clearly the immediate challenge. There are also longer-term implications in terms of the lessons to be drawn for future crises and for the restoration and renewal (R&R) programme of the Palace of Westminster. There is the danger of failing to recognise the unique nature of the legislature as a deliberative assembly and for changes being implemented that favour the executive.

IMMEDIATE CHALLENGES

14. There are two dimensions to replicating the chamber as a deliberative body. One is the obvious one of enabling members to deliberate – that is, to debate and to question ministers – publicly. The other is essentially the unseen dimension, that is, replicating the complementary but informal discourse that occurs between members and enables them more effectively to fulfil the public debate and questioning.

Public deliberation

15. Spontaneity and the ability to seek to intervene are core to parliamentary debates. Even if a minister declines to give way when members seek to intervene, the fact of doing so persistently can affect the mood of the House and have political consequences.

16. Possibly the most important challenge lies not in what is said in virtual or hybrid proceedings, but rather in what is not heard. Members speak, but there is little or no opportunity to challenge and intervene. In the case of the House of Lords, the position is compounded by the number of members seeking to speak and constraints of time, resulting in some peers either not being able to participate or to do so only briefly.

17. There are two consequences. One is in terms of speeches never made. A member may have worked on a speech, but their name is not then in the speakers’ list. It is possible therefore that the House does not hear from members who are notably qualified to speak, be it through experience or expertise, and are therefore denied information that may otherwise have affected their behaviour. This is a problem distinctive to the House of Lords, a combination of its membership and its normal practice of enabling all who wish to speak to do so. Such attributes do not necessarily apply in other legislative chambers. The impact is thus especially notably in the case of the UK’s Upper House. It limits the capacity of the House to fulfil its core function of legislative scrutiny.

18. The second consequence, not peculiar to the House of Lords, is that ministers may make a case without specific claims being challenged. Members with a notable interest and knowledge may be sat watching a minister on screen, but without the capacity to intervene and challenge a questionable or erroneous claim. Ministers know that they will be heard without interruption and this may

4 instil a sense of complacency. It undermines the capacity of the legislature to call government to account and to probe whatever a minister is saying.

19. Within the chamber, the formal proceedings – those recognised as such and appearing in the journal and Hansard – are complemented by members being able to see reactions in the chamber, to have a quick word with colleagues sat around, and to make their views known from sedentary positions by cries of ‘hear, hear’ and ‘shame’ (or at least making some noise that indicates support or disagreement). Ministers are thus able to get some idea of the mood of the House, including whether they are carrying their own supporters with them. This will be noted by the whips.

20. This is lost in virtual proceedings. One may get a sense of how members speaking feel on a subject, but there is a danger of assuming this represents the feelings of the House as a whole, whereas it may be that a minority who feel strongly have taken the opportunity to speak. There is no atmosphere, no sense of whether the speeches are being well received or attracting critical looks from other members.

Informal discourse

21. Public deliberation is underpinned by informal discourse. Without the opportunity to meet informally, members are likely to operate as discrete entities, taking their cues from their parties. Informal discourse facilities intra-party as well as cross- party interaction, members meeting informally in the corridors, lobbies, and tea and dining rooms.

22. Members operating in different parts of the country as discrete entities are denied the opportunity to meet informally with other members. Significant political change may be the result of serendipity, of a member bumping into another in the tea room and sharing information that prompts action that would not otherwise occur. Such informal contact is generally not publicly observable and is not measurable, and so has largely escaped scholarly attention, but it has a number of consequences, not least in terms of socialisation, information exchange, lobbying, and marshalling political support.7

23. Members operating away from the chamber may contact one another through social media, or by telephone, but there is usually an element of planning in such contact and lack the degree of chance encounters that offer themselves within the parliamentary estate.

24. This dimension is also important in the context of voting. Not only do divisions offer opportunities for members to button-hole ministers, including in the House of Commons the Prime Minister – divisions being one of the occasions that brings the premier into the House – but the opportunity for members to chat informally before and during voting can matter. Electronic voting may be efficient, enabling

7 P. Norton, ‘Power behind the Scenes: The Importance of Informal Space in Legislatures,’ Parliamentary Affairs, 72 (2), pp. 245-66.

5 members to vote wherever they are, but it lacks attendant benefits (and obligations) that arise from voting in a lobby.8

25. The overall effect is therefore to limit the capacity of members to behave in a manner that facilitates the legislature fulfilling its core functions in relation to the executive. In the relationship, the balance has tipped notably in favour of the executive.

MITIGATING THE PROBLEM

26. Various actions can be, and have, been taken to mitigate the effects of the crisis for executive-legislative relations. The use of technology has been crucial, enabling steps to be taken that would have been impossible forty or fifty years ago. In this respect, Parliament is in a better position than it would have been then. Indeed, it is difficult to see how the legislature, any legislature, could have continued to operate without the technology to meet virtually.

27. There are two features that have helped mitigate the problem. One has been the greater use of committees. This has been notably so in the UK Parliament in respect of select committees. Given their size and their role (to advise), they have been able to meet virtually, to undertake evidence-taking and to agree and publish reports. Some have been notably productive, not least special inquiry committees in the House of Lords.9 The Constitution Committee of the House also bears testimony to the continuing work of committees. The Liaison Committee in the House of Commons has demonstrated that it is possible to question the Prime Minister as effectively online as physically in a committee room.10

28. The other has been virtual and hybrid proceedings in the chamber. There is at least the opportunity for (some) members to put questions and to contribute to debate. (Hybrid proceedings also have the key advantage, unlike virtual proceedings, of constituting proceedings in Parliament.) Ministers thus have to listen and respond. The development of electronic voting in the House of Lords has also been fundamental to enabling the House to take decisions, especially on legislation. The Government has had to attempt to persuade the House to support it.

8 Lord Norton of Louth, ‘Voting electronically is easy, but should it be?’ The Norton View, 16 June 2020, https://nortonview.wordpress.com/2020/06/16/voting-electronically-is-easy-but-should-it-be/ 9 See, for example, Select Committee on Democracy and Digital Technologies Committee, Digital Technology and the Resurrection of Trust, Session 2019-21, HL Paper 77; Select Committee on the Social and Economic Impact of the Gambling Industry, Gambling Harm – Time for Action, Session 2019-21, HL Paper 79; Select Committee on the Electoral Registration and Administration Act 2013, An electoral system fit for today? More to be done? Session 2019-21, HL Paper 83; Select Committee on Food Poverty, Health and Environment, Hungry for change: fixing the failures in food, Session 2019-21, HL Paper 85. 10 The Prime Minister, according to one report, endured ‘a long and sometimes difficult first appearance before the liaison committee’ when he gave evidence in May 2020. P. Walker, ‘Boris Johnson’s liaison committee appearance: what did we learn?’ The Guardian, 27 May 2020 https://www.theguardian.com/politics/2020/may/27/boris-johnsons-liaison-committee- appearance-what-did-we-learn

6 MOVING AHEAD

29. Both Houses recognise the importance of moving back to meeting physically. The House of Commons attempted this, but somewhat prematurely. Meeting physically enables members to engage in a way not possible virtually, but the exercise is limited by the need for social distancing and having some members unable to return physically to the House.

30. The problems deriving from this have been well illustrated by James Gray MP:

a. The Palace is closed to visitors of any kind; staff are working from home; the odd journalist wisps by like tumbleweed.. . Spontaneous intervention of any kind is impossible… So we backbenchers sit in solitary bewilderment in our little eyries of offices while the great and good get on with whatever they want to… It is, in my opinion, quite wrong to pretend that this is a fully functioning scrutiny system; that we are in some way improving legislation; that we have great opportunities to advance the cause of constituents.11

31. Until there is the possibility of the resumption of normal service, the principal steps that appear required are, first, to build on the developing practice of making greater use of committees. This enables more members to be engaged and more detailed examination than would otherwise be possible, but cannot be a substitute for each House resuming, given the agency role of committees.

32. Second, deriving from the foregoing analysis, is the need to enable members participating virtually to be able to intervene and to challenge what others, especially ministers, are saying. Again, it cannot be a substitute for members being present in the chamber with all the attributes identified above, but it would help strengthen the House in fulfilling its core functions. It is a case of developing the technology to enable members online to signal they wish to intervene. This is possible in small group meetings. It is a case of enabling it to happen when potentially all members of the House are online. Members should be able to signal they wish to intervene and for others to see that they have so signalled, so that members are aware when a minister is ignoring attempts to intervene.

33. Third, there is a case for ensuring members are more involved in decisions on the procedures being employed. The Government is in the driving seat in scheduling business, but the procedures for determining that business have had to be adapted at pace. The House of Commons Commission and the House of Lords Commission have both had to move expeditiously to create novel procedures, but the process has been one that has not been notably inclusive. Members have had little opportunity to shape decisions, as opposed to ratifying them. In the Commons, the Procedure Committee has been active in evaluating the temporary use of procedures and practices,12 and the chair has written to the Speaker

11 James Gray, ‘We must admit that Parliament is not functioning – it’s time to stop providing supine cover for the Government and instead self-isolate until we can scrutinise properly again’, The House, No. 1684, Vol. 43, 6 July 2020, p. 15.

7 regarding divisions,13 but there has been nothing comparable in the House of Lords. Decisions in both Houses are being taken on behalf of the House, but without the opportunity for members to have a meaningful input to the deliberations. It could be argued that this is not a great deviation from usual practice, but the unique circumstances of the current crisis necessitate greater inclusion of the membership to ensure that the executive is not provided with supernumerary opportunities to achieve desired outcomes without adequate parliamentary deliberation.

34. Clearly, great strides have been made in developing the technology to enable hybrid sittings and for members of the Lords to vote electronically – remarkable achievements in a small space of time. The UK Parliament has tended to be ahead of others in the manner and speed of adaptation. It is a case of going one step further and moving as far as possible in the direction of replicating the features of the House that enable members to fulfil the tasks expected of them. Members are doing their best in difficult circumstances. It is a case of strengthening their capacity to deliberate – that is, to fulfil the core task of the legislature.

LOOKING AHEAD: PLANNING FOR ANOTHER CRISIS

35. The immediate concern is adapting to the current crisis to enable Parliament to operate as far as possible as a deliberative body. However, there is a lesson- drawing exercise to be undertaken. What happens if there is a future crisis, such as another pandemic, again preventing both Houses meeting physically? There would be the opportunity to replicate the technology now being used to enable some business to be transacted. If some members were able to attend the chamber, one could repeat hybrid proceedings.

36. However, technology will likely have moved on. Rather than waiting to see what could be utilised at the time, there is a case for contingency planning, for having a dedicated body – perhaps an expert group answering to a parliamentary committee – thinking through how emerging technologies can be utilised most effectively to enable Parliament to operate as a deliberative assembly in the event of an acute crisis preventing members coming together collectively in a physical chamber. The starting point – in effect, the dependent variable – is the need for each House to fulfil its core constitutional role as a deliberative assembly. It then becomes an exercise of thinking through how to ensure, in different scenarios, both can continue to fulfil that role.

LOOKING AHEAD: RESTORATION AND RENEWAL

37. The restoration and renewal programme (R&R) for the Palace of Westminster is under review.14 There appears a view developing that the current crisis has

12 See, for example, House of Commons, Procedure Committee, Procedure under coronavirus restrictions: remote voting in divisions, Second Report, Session 2019-21, HC 335. 13 Letter to the Speaker, 5 May 2020, https://publications.parliament.uk/pa/cm5801/cmselect/cmproced/correspondence/200311-Chair-to- Speaker-coronavirus-and-divisions.pdf

8 shown that different ways of working may be possible to those employed previously in Westminster. More working from home may be feasible for members of staff, certainly those employed by either House, as well as some members’ staff. Technology has already made possible greater use of constituency offices.

38. Such changes may be possible, and prove economically efficient, but that does not render them desirable from a constitutional perspective. Some efficiencies may be achieved, but the key criterion to determine the allocation of resources, including space, is the need to maintain Parliament’s capacity to fulfil its core function. The adaption to the current crisis is not a template for future changes. Above all, the restoration and renewal programme needs to be premised on the need to protect space in order to enable members to meet formally to fulfil their tasks, or rather the tasks ascribed to the House, and to meet informally. This entails protecting, and, if necessary, extending, space for each member, and their staff, to work and expanding public space, both for committees and for members to meet and engage with citizens.

39. It also entails not only protecting, but also extending, space available for informal contact between members and between members and the public. In the context of Westminster, the addition of Portcullis House has transformed parliamentary culture, not only providing office space for members and their staff, but also creating a hub for informal contact. Its geopolitical location also has consequences, facilitating greater contact between members as they are in transit for divisions or otherwise to reach the Palace. The impact on parliamentary life has been profound, creating capacity for interaction for which there was no precedent.

40. The emphasis for the future therefore should not be in terms of moving people away from the Palace, be it to individuals’ homes or some dedicated space in another part of the country, but rather facilitating their ability to interact within the Palace of Westminster. Informal contact is possible through social media and other means, but these opportunities should be viewed as complementing, not supplanting, the ability to meet physically. If both Houses are to fulfil their core role as deliberative assemblies, there needs to be an emphasis on, and enhancement of, both public and private space within the Parliamentary Estate. Dispersing resources away from the estate serves, as the response to the coronavirus crisis demonstrates, to enhance the power of the executive at the expense of the legislature.

BUILDING ON PRE-CORONAVIRUS STRENGTHS

41. Contrary to what may be popular perception, both Houses in recent decades have been notably strengthened in relation to the executive. Both Houses have witnessed wide ranging changes, including, but not confined to, enhanced structures and processes.15 Members have proved willing to exploit the changes

14 See Sarah Johnson, ‘Some Much Needed R&R’, The House, No. 1684, Vol. 43, 6 July 2020, pp. 22-3. 15 P. Norton, ‘Speaking for Parliament’, Parliamentary Affairs, 70 (2), 2017, pp. 191-206. P. Norton, ‘Is the House of Commons Too Powerful? The 2019 Bingham Lecture in Constitutional Studies, University of Oxford’,

9 to more effectively deliberate and call Government to account. The coronavirus crisis has forced a step backwards. It is important to learn what Parliament achieved before the crisis and to build on this, strengthening both Houses in fulfilling their core constitutional role, and building in some resilience to enable them to do so in the future.

Parliamentary Affairs, 72 (4), 2019, pp. 996-1013.

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