Former Clerk of the House: I have never seen legislation like this before

How should parliament function in the age of coronavirus? The government’s new powers are unprecedented in scope, meaning proper scrutiny is more important than ever. Parliament has been dragged into the 21^st century over recent weeks, with the pandemic forcing remote working, leading to the unusual sight of elderly peers using Microsoft Teams. With the legislature back in action, can it continue to adapt and hold the government to account during a period of national emergency?

To discuss these questions I phoned David Natzler, who worked in parliament for 43 years—most recently as Clerk of the House, the principal constitutional official, from 2014-2019. Those were some of the most turbulent years in British parliamentary history and included the Brexit vote and its difficult aftermath. Now they look comparatively tame. Had he ever seen anything like the coronavirus legislation before?

“No,” the 67-year-old replied when I put the question to him on Monday, the week after parliament started working again. “I suppose after every major terrorist incident the government brings in new counterterrorist legislation... But it doesn’t give them anything like this range of changes in power, powers over very many ordinary people. No, nothing like that.”

Parliamentary scrutiny of new regulations is thus “absolutely crucial.” “People are entitled to say, you know, ‘is this working properly, these particular provisions, have they been activated, and were they actually necessary?’” The legislation “was obviously raced through and how it's all working in practice, someone has to keep looking at.”

What does that mean specifically? You have to look at measures’ “legality, whether they've gone beyond the vires”—the scope of the Act meant to provide for them—“and the merits of whether [the government has] wisely used the endless powers given them.”

There are also questions concerning “some of the individual items, particularly the thing about social distancing” between people and “whether the 13 or whatever statutory excuses for ‘being out’ could be better phrased,” though Natzler offered no personal view on these exemptions.

There is understandable reticence among some MPs to look like they are compromising a national effort. Some of them “don't want to seem to be carping at what's going on, you know, sort of ‘wartime spirit,’ but at the same time, you want to know whether or not” regulations are working. Ultimately “I think that's what parliament needs to do to get into the next stage of scrutiny, beyond lobbying for their particular concerns about garden centres and Airbnb and so on, is on to the actual use of statutory powers and how well it's gone.”

But how to perform these functions? Last week the first remote session in 700 years took place, followed by the first ever virtual PMQs. But some have worried that the heat of interrogations in person will disappear online and the government will be let off the hook. Is that Natzler’s view?

While he has “no doubt members are still writing to ministers vigorously and of course asking written questions,” “I think it's the biggest thing that parliamentary politics is a contact sport, and you cannot perform it entirely remotely or by endless WhatsApp groups or telephone conversations, let alone Zoom calls. So, yes, something is lost,” he said.

“There's more to politics than making a series of set piece questions and answers.” Perhaps an excessive reliance on video link risks turning politics into just that.

“I think because of the loss of regular contact, whether in division lobbies or corridors, or just talking—you know, there is less talking going on—the ministers will find themselves, relatively speaking, isolated from individual members... and to the extent that individual members’ contact with ministers in particular is a form of accountability, yes, there has to be some loss. It would be very odd if it was exactly the same.” This is so despite the heroic efforts of parliamentary staff to get new systems up and running, Natzler stressed.

At some point parliamentarians will need to vote. A perennial question, now given urgency, is whether remote voting could work, with each member casting their ballot digitally. “There is no alternative,” said Natzler. “I mean, there is no option B at the end of the day. And I think most people now accept that. There are difficulties with actually getting the system to work perfectly, which of course it won't. But if there's no other option, it has to work in some way, and members have to be able to give an individual vote and have it recorded, and be confident that they're able to access the voting mechanism wherever they are.”

Technology always poses a problem, but “a vast majority of members are connected through the parliamentary hub and are quite able to table questions, and have for years and years through that system. So they’re well connected to parliament.”

Various other methods have been tried in different legislatures, including “bloc voting,” where the leader of each party casts a vote on their MPs’ behalf. The Welsh Assembly conducted this but for Natzler it is an inferior method, as he has written in his excellent blog posts for the Constitution Unit.

Having worked in parliament for the better part of half a century, what, in Natzler’s view, must be preserved when we emerge from the pandemic? What is the essence of parliament? “It's so important that it represents the whole of the United Kingdom, which it can through the constituency system,” he said, “it brings all of what's happening and what should be happening in the country into one place to debate and decide on how to take it forward. And that's just the Commons.

“That is what is wonderful about the House of Commons" stressed Natzler: "people do genuinely bring, from all parts of the country, their different perceptions and their different habits, different accents, all of it. It is a very, very United Kingdom institution. Which of course is lost when they're not physically there, because they learn from one another. But that's what it seems to me that representative democracy is: it does represent all of the country.”

A virtual parliament “will always be sub-optimal… But the question is, I suppose, could it be any better given the circumstances?” For now, “we are waiting for the real thing to return.”