Proxy voting and the Fixed Term Parliaments Act
Memorandum from the Clerk of the House
1. The Procedure Committee of the last Parliament recommended that the pilot scheme for proxy voting for baby leave should not permit proxy voting on motions for an early general election under s2 of the Fixed Term Parliaments Act 2011. It also recommended that the House should decide whether proxy votes should be permitted to count towards the majority in divisions on the closure (the House agreed that they should not) and that they should not count in calculating the quorum of 40 required for any division to be valid. In the latter two cases the votes cast are a demonstration that that number of Members are present and participating in the proceedings.
2. The reason for excluding divisions on a motion for an early general election, as set out by the former Clerk of the House, Sir David Natzler, was that such votes took place in pursuit of a statutory provision and that because of that could be justiciable by the courts. As the Court of Appeal stated recently:
The Courts may have regard to Parliamentary proceedings to ensure that the requirements of a statutory process have been complied with.
3. The Fixed Term Parliaments Act provides that for a motion for an early general election to lead to the holding of an election, if there is a division on it, the motion must pass and ‘the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).’3
4. Arguably the phrase ‘members who vote’ might be interpreted to include only those Members who actually pass through the division lobbies. There are grounds for thinking that the courts would not entertain any application that they should rule on the matter: proceedings in Parliament are expressly precluded from being questioned by the courts under Article 9 of the Bill of Rights 1689. Although the court, by virtue of the statutory provision, might be required to ascertain whether or not the number who voted in favour of the motion exceeds two-thirds, it is for Parliament (in this case the House of Commons) to determine what constitutes ‘voting’. If it decides (e.g. by agreement to a standing order) that Members may ‘vote’ by proxy in all circumstances, the courts have no locus to challenge that. Their role under the Act is limited to establishing that the number of Members recorded as voting in favour, in the House’s official record (the Votes and Proceedings), is in fact equal to or greater than two thirds of the number of seats. I am confident that if such an issue ever arose, the Speaker would seek to make such arguments directly to the court and I would be very hopeful that they would be successful.
5. However, I quite understand why my predecessor advised caution. The House is right to guard jealously its control of its own procedures. That control is critical to the independence of the House and to the proper constitutional separation between Parliament and the courts. Any statutory provision about how the House should conduct its business is potentially capable of challenging that independence and it is therefore wise for the House
to do what it can to minimise that potential. In this case, that led Sir David to suggest that such votes should not be included in the proxy voting pilot.
6. My own view is that the likelihood of this matter being actively considered by a court is extremely low, but it is not zero. The Procedure Committee itself expressed the view that there might be some issues on which it would not be appropriate that proxy votes should be cast (see paras 81-83 of their report).
7. The question for the committee is whether that small, but not entirely negligible, risk is worth taking in order to provide a proxy voting regime which allows Members absent from the House by reason of childbirth or care of an infant or newly adopted child (or, if the scheme is to be widened in scope, absent for other reasons) to participate equally with Members present on the estate in decisions of great importance.
 Q91 and see para 72, Proxy voting and parental absence, 5th report of session 2017-19, HC 825.
 Judgment in Heathrow Hub case (R (on the application of Heathrow Hub Ltd) v Secretary of State for Transport  EWCA Civ 213), para 158 3 Section 2(1)(b).