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Last week, I wrote about the Brady Amendment, brought by Sir Graham Brady MP to stop the Government ruling ‘by decree’ when it comes to local coronavirus lockdowns and other measures.

Prime Minister Boris Johnson and Health Secretary Matt Hancock have been appearing at the despatch box to announce these lockdowns and measures without allowing MPs to debate them in the Commons first.

As I wrote then, because Sir Graham and Steve Baker MP were confident they had the numbers for it to pass on Wednesday, September 30:

It’s all good news — but only if Speaker of the House Sir Lindsay Hoyle allows Brady to bring the proposed amendment forward for debate.

In the end, conversations took place behind closed doors and the Speaker did not table it for debate.

Here is what happened in the meantime.

On Thursday, September 24, Guido Fawkes posted a copy of it (emphases in the original):

Prior parliamentary scrutiny of major national coronavirus regulations

Line [1], leave out from “expire” to end and add “provided Ministers ensure as far as is reasonably practicable that in the exercise of their powers to tackle the pandemic under the Coronavirus Act 2020 and other primary legislation, including for example Part 2A of the Public Health (Control of Disease) Act 1984, Parliament has an opportunity to debate and to vote upon any secondary legislation with effect in the whole of England or the whole United Kingdom before it comes into effect.”

Member’s explanatory statement

This amendment appends to the statutory motion, Section 98.2 of the Coronavirus Act, a provision that Parliament shall have the opportunity to debate and vote upon secondary legislation of major national importance before it comes into effect. The amendment makes clear Parliament’s intent to renew the powers of the Coronavirus Act with this provision.

Dr Ruth Fox, Director of the Hansard Society, wrote an analysis of it: ‘Building on the Brady Amendment: how can Parliament scrutinise Coronavirus regulations more effectively?’

At that point, 46 MPs had signed the amendment. Forty of the MPs are Conservatives.

On Sunday, September 27, the BBC’s Andrew Marr interviewed the new leader of the Liberal Democrats, Sir Ed Davey, who said he was ‘hugely sympathetic’ to the amendment, would ‘almost certainly’ vote for it and said it doesn’t go far enough:

On Monday evening, Steve Baker tweeted to say that the Conservative Whip invited him and other signatories to discuss the matter with Matt Hancock and Leader of the House Jacob Rees-Mogg:

William Wragg (Con) is also one of the good guys. His tweet below met with mixed reactions from the British public:

Bloomberg’s economics editor tweeted …

… as did The Spectator‘s deputy political editor:

Katy Balls’s article, ‘Is No. 10 about to move on the Brady amendment?’

She wrote, in part (emphases mine):

The critical conversations … have been going on out of sight. As Tory support grows for the Brady amendment — which seeks to give parliament a say on changes to coronavirus restrictions currently covered by emergency laws — government chief whip Mark Spencer has spent his afternoon meeting with would-be Tory rebels.

While it’s still unclear whether the amendment will even be selected on Wednesday for a vote (the expectation in government is that it will be ruled out of scope by the Speaker), the size of the potential rebellion has been enough to focus minds …

Former ERG chair Steve Baker described the meeting online as ‘cordial and constructive’. The expectation among those rebels who attended today’s meeting is that the government is in ‘listening mode’ and will come back with a proposal in due course. However, while there is room for negotiation here, a red line among many of the leading rebels is that it isn’t enough to be given more time for speeches, MPs need a say — they need votes. Up until now, that’s something No. 10 has been reluctant to give.

On Tuesday, Guido tweeted:

By that time, 80 Conservative rebels had signed the amendment.

Guido’s accompanying post was, as usual, accurate in predicting what would happen on Wednesday. ITV’s Robert Peston was spot on (emphases in the original):

By all accounts a deal is close to being struck before Wednesday’s vote. Robert Peston reckons Hancock will acquiesce at the Despatch Box tomorrow, and allow MPs to vote on national coronavirus measures – albeit reserving the power to delay the vote until a few days after the imposition of a new restriction in the case of “an emergency“. Rebels are holding what specific procedure they would agree to close to their chest, although Steve Baker described yesterday’s meeting as “cordial and constructive”…

While the Brady Amendment could still be ruled out of scope by the Speaker on Wednesday instead of being put to a vote, Number 10 has been at pains to communicate that it understands the swelling sense of feeling on its back benches. Guido is told by one senior rebel that they are “confident a solution will be found”…

On Wednesday, September 30, the Speaker sympathetically announced why he rejected the Brady Amendment. However, he also rebuked the Government:

I will now look the the Government to rebuild trust with this house and not treat it with the contempt it has shown.

Here’s the video:

He allowed a 90-minute debate that afternoon, followed by a vote, on renewing the Coronavirus Act 2020.

The first part of his statement pertains to the Government and the latter half to the Brady Amendment (emphases mine):

I wish to make a statement about this House’s scrutiny of delegated powers during the pandemic, and on the selection of amendments to the motion relating to the Coronavirus Act 2020 later today.

The way in which the Government have exercised their powers to make secondary legislation during this crisis has been totally unsatisfactory. All too often, important statutory instruments have been published a matter of hours before they come into force, and some explanations why important measures have come into effect before they can be laid before this House have been unconvincing; this shows a total disregard for the House.

The Government must make greater efforts to prepare measures more quickly, so that this House can debate and decide upon the most significant measures at the earliest possible point. The use of made affirmative statutory instruments under the urgency procedure gives rise to particular concern. I will give very sympathetic consideration to applications for urgent questions or emergency debates in such cases, requiring Ministers to come to the Dispatch Box to justify the use of such powers.

That last sentence means that Matt Hancock will have to appear at the despatch box to answer questions and allow debate.

Moving along to the debate held that afternoon and to the Brady Amendment:

I hope that all hon. Members will have a chance to express their views through substantive amendable motions on scrutiny of delegated powers, or on the operation of the Coronavirus Act 2020, or both.

I turn now to the motion to be considered later today, which invites the House to make a narrow, binary choice as to whether the temporary provisions of the Coronavirus Act 2020 should or should not expire. Unfortunately, as it is only a 90-minute debate as a proceeding under an Act under Standing Order No. 16, I am disappointed that I cannot give additional time to discuss the issues. I know some Members will be disappointed.

When I became Speaker, I made it clear that I would take decisions on matters relating to procedure guided by professional advice. I have concluded, on the basis of advice that I have received, that any amendment to the motion before the House risks giving rise to uncertainty about the decision the House has taken. This then risks decisions that are rightly the responsibility of Parliament ultimately being determined by the courts. Lack of clarity in such important matters risks undermining the rule of law. I have therefore decided not to select any of the amendments to the motion.

As I hope my earlier comments show, I have not taken this decision lightly. I am looking to the Government to remedy a situation I regard as completely unsatisfactory. I now look to the Government to rebuild the trust with this House and not treat it with the contempt that they have shown.

Matt Hancock introduced the debate of the renewal of the Coronavirus Act 2020 and said:

This has been an unprecedented time. This House has had to do many unprecedented things, many of which have been uncomfortable. I have listened to the concerns raised about scrutiny. As you pointed out earlier, Mr Speaker, there have been times when this pandemic has challenged us all and we have not been able to do this as well as we would have liked. I therefore propose that we change the approach to bringing in urgent measures. I am very grateful to all colleagues we have worked with to come forward with a proposal that will allow us to make decisions and implement them fast, yet also ensure that they are scrutinised properly.

Today, I can confirm to the House that for significant national measures with effect in the whole of England or UK-wide, we will consult Parliament; wherever possible, we will hold votes before such regulations come into force. But of course, responding to the virus means that the Government must act with speed when required, and we cannot hold up urgent regulations that are needed to control the virus and save lives. I am sure that no Member of this House would want to limit the Government’s ability to take emergency action in the national interest, as we did in March.

We will continue to involve the House in scrutinising our decisions in the way my right hon. Friend the Prime Minister set out last week, with regular statements and debates, and the ability for Members to question the Government’s scientific advisers more regularly, gain access to data about their constituencies and join daily calls with my right hon. Friend the Paymaster General. I hope these new arrangements will be welcomed on both sides of the House, and I will continue to listen to colleagues’ concerns, as I have tried my best to do throughout.

That said very little. I remain unconvinced.

Sir Graham Brady was the first to respond:

I thank my right hon. Friend for being prepared to listen and for the constructive conversations that we have had over the last couple of weeks. As he said, Members on both sides of the House understand the importance of Ministers having the freedom to act quickly when it is necessary, but we are grateful that he and other members of the Government have understood the importance of proper scrutiny in this place and the benefits that that can bring for better government.

Steve Baker also expressed his thanks.

A few minutes later, Steve Brine (Con) pointed out that some of these dangers to civil liberties come from older legislation:

I thank the Secretary of State very much for the sensible measures the Government have taken today on the involvement and ongoing consent of this House. There is widespread public concern out there about consent and the measures we are imposing on their lives. Just to be clear for the public, and some sectors of the media, watching this debate: many of the restrictions that we are reluctantly having to place on our constituents’ lives do not come through the Coronavirus Act 2020; they come through many other pieces of legislation, but primarily the Public Health (Control of Disease) Act 1984.

Mark Harper (Con) asked for more detail on how this new rapprochement would work:

May I just press the Secretary of State? He said in his remarks that the Government will bring forward votes in advance of the measures coming into force on national measures covering the whole of England or the whole of the UK. Obviously, some of the measures that have come into force so far have been quite significant, covering large parts of the country and millions of people. I accept there is a judgment to be made here; can he say a little more about where the line will be drawn about what is brought to this House in advance?

Hancock gave a slippery answer:

In a way my right hon. Friend, who has huge experience in these matters, answers his own question, because of course there is a judgment to be made. We have made a very clear commitment to the process that we will follow, and I hope that over the weeks to come we will demonstrate through our actions and through what we bring forward that we are true to that commitment, which essentially will become a new convention.

‘A new convention’! It is standard parliamentary procedure.

Tim Farron (Lib Dem) asked about the seeming inconsistency of social distancing and the harm to certain businesses:

Will he agree, though, that the inconsistent and sometimes nonsensical application of some of the rules is doing damage to some of the businesses that he talks about? In particular, I am thinking of the wedding industry and the many families who have been affected by that. The rule of six surely can apply so that a place that can take many multiples of six could host weddings and give people their special day, and so that it does not kill a vital industry not just in the lakes and the dales, but across the country.

Hancock gave a stock answer about following public health evidence.

Andrew Mitchell (Con) also asked about weddings as well as the events industry:

I have a lot of sympathy with what the Secretary of State is saying, but may I also support what was said by the hon. Member for Westmorland and Lonsdale (Tim Farron), not only about the wedding industry but about the exhibitions and events industry? Will my right hon. Friend at least bear in mind that good sense from careful people who seek to be covid-sensible and compliant would enable him to exercise some flexibility in the very inflexible rules that currently govern those two important industries, which are flat on their backs?

Edward Timpson (Con) was also concerned about wedding venues:

On the 15-person limit at wedding venues, it would help a lot of those in the industry, which is struggling desperately, if they could see the public health evidence and anything else taken into consideration in coming to that judgment. The difference between them and the rest of the hospitality industry does stand out, and they are going to be in a further desperate state for the next six months.

Hancock referred him to the Business Secretary!

Nick Thomas-Symonds responded on behalf of Labour to Hancock’s statement.

Sir Graham Brady rose to speak:

Mr Speaker, may I begin by thanking you? Although you gave your reasons earlier for not selecting the amendments in my name and that of 80 other colleagues across the House, you also made your expectations of Government crystal clear. No one could doubt your commitment to upholding the Standing Orders of this House, Mr Speaker, and nor have you left any doubt about your resolve in defending parliamentary democracy and the right of this House to scrutinise and hold Ministers to account.

I am also pleased to be able to thank my right hon. Friend the Secretary of State. Throughout my discussions with him, he has accepted the need to find a better approach to scrutiny and parliamentary approval of coronavirus measures. The new procedure that he has committed the Government to follow shows a genuine understanding of what has been wrong in the past and a real promise of transparency and engagement in the future. I believe the outcome we have reached is in the interests of Parliament, in the interests of better government and, most importantly, it gives the British people reassurance that measures that restrict their liberty, interfere with their family life, and very often threaten their livelihoods will not be implemented without important questions being asked and answers given in advance.

This video is a must watch as Hancock looks absolutely petulant:

Chris Bryant (Lab) asked Brady:

Can the hon. Gentleman tell us what this new procedure is?

Brady replied:

The hon. Gentleman is an expert on procedure, and he will soon get to grips with it. It is the made affirmative procedure, which entails the setting of a commencement date in the future for measures, which will allow for a debate and vote to take place in advance of commencement. The House will therefore have that crucial ability to refuse consent.

It isn’t often that I agree with Chris Bryant, but I did here. He came back with this:

But the Government decide.

Brady said:

These things will be brought forward. We have had the assurance, and we will hold the Government to it. The hon. Gentleman will see it very soon.

I will close by thanking those Members across the House who, by supporting my amendment publicly or privately, have helped to achieve what I believe will be an important step forward for all of us.

The Speaker set a three-minute time limit on the rest of the speeches, in order to fit everyone in:

Scotland’s Ian Blackford (SNP) banged on for 20 minutes, beginning as follows:

I regret the fact that this is only a 90-minute debate. The Government should have ensured that a more appropriate amount of time was given. In that context, I will not do what I normally do; I apologise to Members, but because of time, I will not be taking interventions. [Hon. Members: “Hooray!“] That is utterly pathetic.

Jim Shannon (DUP) asked about a future vaccine, hoping that its uptake would be voluntary:

Very quickly, one of the issues that has come to my attentionthe number of emails has been enormousis to do with the enforcement of vaccines on those people who do not wish to have them. I personally would take such a vaccine, but others will not. Does my hon. Friend agree that when it comes to vaccines, it should be by choice only?

I couldn’t agree more.

Sammy Wilson (DUP) had the best speech, because he wanted to find out more specifics of this ‘new convention’ of Hancock’s. He began by replying to Jim Shannon:

Well, of course, that is an issue that the Government will have to address in the future, if ever a vaccine is found.

The important thing is the frustration that many in the public are experiencing at present. It might not have been totally wiped out, but I believe there certainly would have been far more scrutiny if this House had not just had the ability to listen to statements or ask questions, but had actually had the real sanction that if the Minister did not make a consistent and competent case for the measures that he was introducing, they could be voted down. That is why the demand that there be effective scrutiny by this House is important.

We have listened to what the Minister has said, but I am not convinced that we will see that effective scrutiny; because if I heard him right, first, it would only be for matters that are significant. Now, who will make the judgment on whether the issue is significant? I can tell the Minister that, if I own a business and it is decided that it could be closed down, that is significant; yet we do not know who will make that final decision.

The scrutiny will only be for issues that are national. Sixteen million people are currently affected by a range of local decisions and local restrictions. That, to me, is as bad—half the nation, half the country, is affected—yet according to the Minister’s definition today that would not be covered because it would not be a national decision. And, of course, scrutiny will happen where possible. I suppose if the Government wished to escape scrutiny they could always say, “But this has suddenly emerged,” even though the data could have been collected days and days before. So who will decide whether it is possible to have the time to do this?

Hancock gave him a deathly stare.

After an intervention, he continued and concluded:

It certainly should not be left to those who have wanted to rush through decisions and those who in the past have wanted to escape scrutiny because the decisions have been illogical and inconsistent, and people cannot understand them, and even some of those who have made the decisions do not understand them and sometimes have a different interpretation.

This is not just about MPs having a sense of their own importance. This is important if the measures are to have acceptance among the public, because with that kind of scrutiny, with a final vote, at least if we were not convinced that the measures were necessary, if we were not convinced that they would not have disproportionately damaging effects, if we were not convinced that they would actually work, if we were not convinced that the public would understand them, we would have the right to say, “Minister, you cannot proceed with them,” and have the opportunity to vote them down. I do not think we have had a convincing assurance from the Secretary of State today about when we would have that kind of role, and if we do not have that kind of role, I do not think that we should support the continuation of these kinds of measures.

In the end — because of Ian Blackford:

Shameful.

After a few more MPs spoke, it was time for Hancock to wrap things up prior to the vote on the extension of the Coronavirus Act 2020.

He gave a very watery response to Sammy Wilson:

I listened with care to the right hon. Member for East Antrim (Sammy Wilson). I urge him to support the Coronavirus Act this evening, not least because he knows, from the commitments I have given, that there will be further chances for both scrutiny and votes on measures in future thanks to the discussions we have had today.

Unfortunately, the Act was renewed: 330-24.

More on this to follow tomorrow.

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