Many people are aware that Acts of Parliament require Royal Assent but Queen’s Consent and Prince’s Consent are less well understood. The extracts from Erskine May, 24th edition below show the wide ranging impact of this obscure provision. The obscurity of Parliamentary procedures is partly hidden from the public due to the exorbitant cost of Erskine May – (see Richard Taylor’s Blog Post: Parliament Blown Open by Hackers)

Prince of Wales’s consent

“The Prince’s consent is required for a bill which affects the rights of the
principality of Wales and earldom of Chester, or which makes specific reference to, or special provision for, the Duchy of Cornwall; and the Prince’s consent may (depending on the circumstances) be required for a bill which amends an Act which does any of those things.”

“The need for consent arises from the Sovereign’s reversionary interest in the Duchy of Cornwall. For that reason, if a bill affects the Duchy of Cornwall in the same way as it affects other Crown land, separate Prince’s consent has not been required, the Queen’s consent being sufficient. The Prince’s consent was not required for provisions amending an Act which did not apply to the Duchy, even though those provisions referred expressly to communications with the heir to the Throne. A bill affecting the Duchy of Cornwall in its capacity as harbour authority for the Isles of Scilly has required the Prince’s consent. For the Duchy of Cornwall’s interest in intestacy and bona vacantia…”

One thought on “Erskine May extracts re Prince’s Consent

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    page
    To
    The Right Honourable
    John Bercow MP
    Speaker of the House of Commons
    and to
    the Lord Speaker, Speakers and Presiding Officers
    of the Commonwealth Parliaments
    on whom fall
    the great responsibilities of guardianship of the parliamentary system.

    v

    page
    Erskine May’s
    Treatise on
    The Law, Privileges,
    Proceedings and Usage of
    Parliament
    Twenty-fourth edition
    2011

    Editor
    Sir Malcolm Jack KCB PhD
    Clerk of the House of Commons

    Deputy Editor
    Mark Hutton
    Principal Clerk, House of Commons

    Assistant Editors
    Douglas Millar CB
    Formerly Clerk Assistant, House of Commons
    Simon Patrick
    Principal Clerk, House of Commons
    Christopher Johnson
    Clerk of the Journals, House of Lords
    Alan Sandall
    Formerly Deputy Principal Clerk, House of Commons

    LexisNexis@
    III

    page

    page
    Preface

    In the preface to the first edition of his treatise, Erskine May, who at that time
    was Assistant Librarian in the House of Commons, stated its object as being
    to describe the various functions and proceedings of Parliament in a form adapted,
    as well as to the purposes of reference, as to a methodical treatment of the subject. 1
    Erskine May must have realised how difficult it was going to be to reconcile the
    two components of that objective and achieve a book of reference which was
    at the same time a ‘methodical’, authoritative treatise on the constitution. The
    problem was particularly acute because the system being described was not
    bounded by a comprehensive, written constitution but instead by a set of laws,
    proceedings and practices based primarily, but not exclusively, on precedent.
    The challenge to present a work that is both an authoritative source on
    constitutional matters and a usable manual has faced all subsequent editors of
    May. In his preface to the fourteenth edition, Sir Gilbert (later Lord) Campion
    recognised the need to prune out historical information that was no longer
    directly relevant to contemporary parliamentary practice. He therefore reor-
    ganised Lonsdale Webster’s massive thirteenth edition. Campion’s approach
    has been reflected in subsequent editions although, as in Gordon’s twentieth
    edition, it has not always led to a shortening of the text. 2 While the present
    edition recognises the need to prune historical background in the interests of
    clear exposition of modern practice, there are areas, particularly in respect of
    the chapters on parliamentary privilege and to a lesser extent in those relating
    to financial procedure, where the subject cannot intelligibly be separated from
    its history.
    There has also been considerable rewriting of certain chapters to bring them
    up to date. In Part I, the chapter on the power and jurisdiction of Parliament
    has been recast to take account of the end of the House of Lords as a Court of
    Judicature and further developments in devolution. Other chapters have been
    re-ordered (Committees of the whole House have been brought into the
    chapter dealing with proceedings in passing bills). New material, for example
    on legislative scrutiny and the creation of public bill committees in place of
    standing committees and fuller treatment of other subjects, such as Money and
    Ways and Means Resolutions, are inserted in appropriate places.
    Three further editorial points should be made: first, there has been some
    rationalisation of the text to avoid parallel passages. Second, whenever
    possible references guide the reader to earlier editions for further detail. Lastly,
    some attention has been paid to the different stylistic variation of language and
    expression which has been passed on from one edition to another.

    1 Erskine May (1st edn, 1844) p v.

    2 See Erskine May (14th (1946), 13th (1924) and 20th (1983) edns).

    vu

    page
    Notwithstanding these changes authoritative coiHiBUe3 £8 B~
    sources Rave
    cited. Erskine May was himself a notable constitutional historian, writing
    much else besides his celebrated treatise of which he produced the first nine
    editions. He acknowledged his debt to John Hatsell (Clerk of the House
    of Commons from 1768 to 1820) whose Precedents of Proceedings, setting out
    the basic principles that govern parliamentary privilege and procedure, had
    been first published more than half a century earlier.3 Hatsell’s work, as he
    readily acknowledged, had itself gained much from the heavily annotated
    Precedent Book of Speaker Onslow (Arthur Onslow, Speaker of the House
    of Commons from 1728 to 1761). The most recent of these parliamentary
    authorities is Professor Sir William McKay (Clerk of the House of Commons
    from 1998 to 2002) whose recognised expertise in parliamentary privilege
    added considerable authority to the previous, twenty-third edition. 4 These
    authorities, ancient and modern, have contributed to the evolution of May as
    an extended essay on our parliamentary and constitutional history as well as
    a guide to contemporary parliamentary practice.
    The flexibilities inherent in the United Kingdom’s constitutional arrangements
    mean that the relationships between the principal elements, the Crown, the
    legislature, the executive and the judiciary, are not immutable, but even so the
    rate and extent of change, particularly in respect of the relationships between
    the legislature and the executive and the legislature and the judiciary, over the
    period covered by this edition has been remarkable. Some of that change-for
    example law emanating from the European Union-occurs outside but greatly
    influences the workings of Parliament. Since 1997 the Government of the day
    pursued constitutional reform in the Commons itself through the Modernisa-
    tion Committee but also extended that reform to cover the composition of the
    House of Lords, the operation of the judicial system (culminating in the first
    session of the Supreme Court in 2009) and the organisation of the civil service.
    In 2006 the first Lord Speaker was elected in the House of Lords; in
    the Commons the Speaker was elected by secret ballot for the first time in
    2009. Towards the end of the last Parliament, significant changes which were
    recommended in a landmark report from the House of Commons Re-
    form Committee, 5 including the election of deputy speakers, chairs and select
    committee members and the establishment of the Backbench Business Com-
    mittee with control over 35 days of business in a session. These changes were
    implemented at the beginning of the 2010 Parliament. At the same time the
    formation of a coalition government brought another set of procedural and
    practical issues to the fore. The full impact of these changes on Parliament and
    their durability cannot yet be accurately assessed but it has been the aim of this
    edition to capture the details of these recent developments.
    Within the House of Commons administration, further reforms aimed at
    creating a more effective modern service based on strategic planning, were put
    in place following a review conducted by Sir Kevin Tebbit. 6 Similar steps were

    under that title in 1781 although the genesis of the work first appeared in a single volume
    entitled A Collection of Cases of Privilege of Parliament, from the Earliest Records to the Year
    1628 in 1776].
    parliamentary procedure over the centuries as the context to May’s Treatise. See Erskine May
    (23rd edn, 2004) pp 3-11.
    Tebbitt KCB CMG to the House of Commons Commission, HC 685 (2006-07).

    page
    Preface IX

    taken in respect of the management of the House of Lords. At the same time
    priority was given to improving ICT support for the institutions themselves as
    well as for individual Members of both Houses. A new emphasis on financial
    controls and the effective use of human resources in managing change has
    recently come to the fore.
    As editor I would wish to put on record my thanks to the publisher for
    continuing to support what is a widely used authority throughout the Com-
    monwealth and in which relevant Commonwealth experience is cited. But my
    warmest thanks must go to the team of deputy and assistant editors whose
    names appear on the title page and to Hannah White and Sara Howe who
    supported us and, assisted by Eliot Barrass, have produced the index. Thanks
    are also due to numerous members of the staff of both Houses who have
    contributed to this work with great generosity of time and effort. No edition
    of May can be completed without the combined wisdom and knowledge of
    many minds.

    Malcolm Jack
    Clerk of the House of Commons

    page

    page
    Contents

    Preface vii
    Contents xi
    List of abbreviations li

    PART 1 CONSTITUTION AND ORGANIZATION OF PARLIAMENT
    Chapter 1 The constituent parts of Parliament
    Introductory 1
    The Sovereign 2
    Limitations of prerogative 3
    Prerogative in connection with Parliament 3
    House of Commons 4
    Medieval and early modern representation: England and Wales 4
    Great Britain and the United Kingdom 4
    England and Wales 5
    Scotland 5
    Ireland and Northern Ireland 6
    The House of Lords 6
    Lords Spiritual 7
    Lords Temporal 7
    By-elections 8
    Peers of Ireland 8
    Palace of Westminster 9
    General arrangements 9
    Chambers of the two Houses 10
    Places of Members 11
    Commons 11
    Lords 12
    Access to the Houses of Parliament 12
    Admission of non-Members 13
    Commons 13
    Intrusion of persons other than Members into the
    Chamber 14
    Exclusion of the public from the galleries 14
    Withdrawal of the public during a division 15
    Misconduct of the public in the galleries 15
    Lords 16
    History of Parliament Trust 16
    Chapter 2 Elections
    The electorate
    19
    Disqualification of electors 19

    Xl

    page 20

    Constituencies 20
    Registration of electors 21
    Electoral registration officers 22
    Postal and proxy voting 22
    The electoral timetable and holding of elections 22
    Re-election of the Speaker at a general election 23
    Election campaigns 24
    New writs 24
    Vacancies during a session 25
    Period for presenting petitions 25
    Vacancy by peerage 26
    Supersedeas to writs 26
    Provisions of the Recess Elections Act 1975 26
    Mental illness or imprisonment 27
    Appointment of Members to issue writs 27
    Manner of issue of writs 28
    Return of writs 28
    Correction of error in return 28
    Failure to make return to writ 28
    Trial of controverted elections 29
    Procedure under the Representation of the People Act 1983 29
    Proceedings of the House in matters of election 30
    Proceedings of House upon determination of election trials 30
    Corrupt practices 31
    The Electoral Commission 31

    Chapter 3 Disqualification for membership of either House
    Disqualifications for membership of the House of Commons 33
    Aliens 33
    Persons under 18 33
    Mental disorder 33
    Peers 34
    Bankruptcy 34
    England, Wales and Northern Ireland 34
    Scotland 35
    Treason 35
    Other crimes 35
    Corrupt practices at elections 35
    Clergy 36
    Returning officers 36
    Disqualification of certain office-holders 36
    Public service disqualification 37
    The Civil Service 37
    The armed forces 37
    Police 38
    Members of legislatures outside the Commonwealth 38
    Disqualification by particular office 38
    Judicial office 38
    Bodies of which all members are disqualified 38
    Other disqualifying offices 39
    Offices disqualifying for particular constituencies 39
    Chiltern Hundreds and Manor of Northstead 39
    Effect and disregard of disqualification 40
    Jurisdiction of the Privy Council in disqualification 41
    Ministerial office 42
    Amendment of House of Commons Disqualification Act 1975 42
    Disqualifications for membership of the House of Lords 43
    Aliens 43
    Persons under 21 43

    page
    Contents Xlll

    Bankruptcy 43
    Treason 44
    Membership of the European Parliament 44
    Disqualifying judicial office 44
    Mental Health Act 1983 44
    Disqualification by sentence of the House 44
    Chapter 4 Members and Officers of Parliament
    General 47
    Attendance of Members 47
    Leave of absence 48
    Commons 48
    Lords 48
    House of Commons 49
    Party machinery 49
    The Official Opposition 49
    Leader of the House of Commons 50
    Constitution and financing of party machinery 50
    Duties of Whips 51
    Payment of Members 52
    Increase in salaries of Members 52
    Conditions of payment 54
    Members’ expenses 54
    Members’ Fund 56
    Parliamentary Contributory Pension Fund 57
    Association of Former Members 59
    Officers of the Commons 59
    The Speaker of the House of Commons 59
    The Speaker as representative of the House of Commons 59
    In relation to the Queen 59
    In relation to the Lords 60
    In relation to outside authorities 60
    The rank of the Speaker 61
    The Speaker as presiding officer of the House of Commons 61
    Duties of the Speaker in relation to the business of the
    House 61
    Speaker’s powers by usage 62
    Speaker’s powers under Standing Order 62
    The Speaker’s administrative duties 63
    Duties under statute 63
    Functions of office after dissolution and during
    prorogation 64
    Speakers’ Conferences on Electoral Law 64
    Resignation of Speaker 64
    Deputy Speakers 65
    The Chairman of Ways and Means 66
    Impartiality 67
    Resignation of the Chairman of Ways and Means 67
    Deputy Chairmen of Ways and Means 67
    Temporary appointment of a Member to act as Deputy
    Chairman 68
    Temporary chairmen 68
    Chairmen in Westminster Hall 68
    Additional salaries paid to certain Members 68
    Salary of the Speaker 69
    Salaries of Chairman and Deputy Chairmen of Ways and
    Means 69
    Salaries of Leader of Opposition and Opposition Whips 69
    Payment for chairs of committees 70

    page
    XVI Contents

    The Public Accounts Commission 121
    The Parliamentary Commissioner for Administration 121
    The Independent Parliamentary Standards Authority 122

    Chapter 7 Parliamentary papers and publications
    Business Papers 123
    House of Commons 123
    The Vote Bundle 123
    The Order Paper 123
    Votes and Proceedings 125
    The Journal 126
    House of Lords 128
    House of Lords Business 128
    The Journals of the House of Lords 128
    The Official Reports of Debates in the Lords and Commons 129
    The Commons’ Official Report 129
    The Lords’ Official Report 131
    Papers presented to Parliament 131
    Command Papers 131
    Act Papers 132
    Returns 133
    Presentation of papers 134
    Contingent liabilities 134
    Ratification of Treaties 135
    Other papers, not presented to Parliament 136
    Copyright 136
    Printing and distribution of papers 136
    Parliamentary papers 136
    Printing of papers 138
    Electronic publication 138
    Non-parliamentary publications 138
    European Union publications 138
    Data protection 138
    Freedom of information 139
    Broadcasting of parliamentary proceedings 140
    Editorial control 141
    Retention of records 141
    Chapter 8 A new Parliament and opening and closing of session
    Parliamentary and sessional periods 143
    Summons of Parliament 144
    Date and place of meeting of Parliament 144
    Dissolution of Parliament 144
    Prorogation and adjournment 144
    Effect of prorogation 145
    Effect of adjournment 145
    Procedure of prorogation 145
    Alteration of the opening of Parliament after prorogation 146
    Meeting of Parliament postponed 146
    Meeting of Parliament accelerated during prorogation 146
    Demise of the Crown 147
    Recall of Parliament during adjournment 147
    Meeting of a new Parliament 148
    Certificate of return 149
    Black Rod attends the Commons 149
    Commons attend in the House of Lords 149
    Election of a Speaker by the Commons 150
    Speaker elect returns thanks 151
    Royal approbation of the Speaker elect 151

    page
    Contents xvii

    Claim to privileges 151
    Election of Speaker in course of session 151
    Taking the Oath 153
    Oath in the Commons 153
    Oath in the Lords 154
    Oath on demise of Crown 154
    Manner of taking the oath or making the affirmation required
    bylaw 155
    Time for taking the oath 155
    Penalties for omission to take the oath 155
    Subscription of oath and affirmation 156
    Election of Deputy Speakers in the Commons 157
    Opening of new session 157
    Opening by Queen in person 158
    Opening by Commission 158
    Report of Queen’s Speech 159
    Business taken before consideration of Queen’s speech 159
    Bill read pro forma 159
    Other business 159
    Address in reply to Queen’s Speech 160
    Presentation of Address 161
    Her Majesty’s answer 161
    Chapter 9 Formal communications between Crown and Parliament and
    between Lords and Commons
    Communications between Crown and Parliament 163
    Communications from the Crown to Parliament 163
    Communications by messages under the sign manual 163
    Other forms of communication 164
    Queen’s pleasure 164
    Queen’s recommendation 165
    Queen’s consent on bills 165
    Queen’s consent withheld or not signified 167
    Acknowledgement of messages from the Crown 167
    Messages under the sign manual, etc 167
    On royal pleasure, etc being signified 168
    Communications to the Crown originating in Parliament 168
    Addresses to the Crown 168
    Subjects of Addresses 168
    Mode of presentation of Addresses 169
    Addresses made in the Sovereign’s absence 170
    Answers to Addresses 170
    Communications with the royal family 171
    Communications between the Lords and the Commons 171
    Messages
    171
    Chapter 10 Parliament and international assemblies
    The Parliamentary Assembly of the Council of Europe 173
    The Council of Europe 173
    Representation and credentials 174
    The Assembly of Western European Union 175
    The Western European Union 175
    The NATO Parliamentary Assembly 175
    Membership 175
    The Parliamentary Assembly of the Organization for Security
    and Co-operation in Europe 176
    Membership
    176
    The Commonwealth Parliamentary Association 177
    The Inter-Parliamentary Union 177

    page
    xviii Contents

    The British-Irish Parliamentary Assembly 178

    PART 2 POWERS AND PRIVILEGES OF PARLIAMENT

    Chapter 11 Power and jurisdiction of Parliament
    Extent of the prerogative of the Crown in reference to Parliament 181
    Principal power of the Commons 181
    Rights and functions of the House of Lords 181
    Judicial functions of the House of Lords 182
    Peerage claims 182
    Extent of legislative authority of Parliament 183
    European Communities Act 1972 184
    Powers of the Houses in relation to each other 185
    Devolution 186
    Scotland 187
    Northern Ireland 187
    Wales 188
    Convention on legislating on devolved matters 189
    The ‘self-denying ordinance’ 190
    Penal jurisdiction of both Houses 191
    Power of both Houses to secure attendance of persons on mat-
    ters of privilege 191
    Committal 192
    Committal without a warrant 193
    Warrants of committal 193
    Period of committal and discharge 195
    Punishment of non-Members other than by committal 196
    fin9 1%
    Reprimand or admonition 196
    Prosecution of offenders 197
    Punishment of Members: House of Commons 197
    Reprimand or admonition 197
    Suspension 198
    Suspension and the salary of Members 198
    Expulsion 198
    Procedural fairness 200
    Punishment of Members: House of Lords 200
    Power to summon witnesses 201
    Ministerial accountability to Parliament 201

    Chapter 12 The privilege of Parliament
    What constitutes privilege 203
    Lords: privileges of Parliament and of peerage 205
    Historical development of privilege 206
    Freedom of speech 206
    Freedom from arrest 209
    Freedom of access 215
    Favourable construction 216
    Privilege with respect to membership of the House 216
    Modern application of privilege law 217

    Chapter 13 Privilege of freedom of speech
    Freedom of speech in debate 222
    Publication of debates or proceedings 223
    Commons 223
    Lords 223

    page
    Contents XIX

    Publication outside Parliament of proceedings and debates III
    Parliament 224
    Exclusive cognizance 227
    Pepper v Hart 231
    Article IX of the Bill of Rights 233
    ‘Impeached’ and ‘questioned’ 233
    ‘Proceedings in Parliament’ 235
    ‘Court or place out of Parliament’ 239
    Implied amendment, etc 239
    Proceedings, precincts and criminal acts 240
    Chapter 14 Privilege of freedom from arrest
    Criminal law and statutory detention 243
    House to be informed of arrests 243
    House to be informed of sentences for criminal offences 244
    Statutory detention 245
    Detention under mental health legislation 245
    Other statutory detention 245
    Contempt of court 246
    Bankruptcy 247
    Privileges related to freedom from arrest 248
    Admissibility of Members as bail 248
    Members summoned as witnesses 248
    Exemption from jury service 249
    Duration of the privilege of freedom from arrest 249
    House of Commons 249
    House of Lords 249
    Privilege extending beyond Members 250
    Chapter 15 Contempts
    Misconduct in presence of either House or a committee 251
    Members of the public 252
    Witnesses 252
    Disobedience to rules or orders of either House or of a committee 253
    General and particular rules 253
    Petitions and other documents 253
    Misconduct of Members or officers 254
    Members deliberately misleading the House 254
    Corruption or impropriety 254
    Professional services connected with proceedings 256
    Other misconduct by Members 257
    Misconduct by officers 258
    Constructive contempts 258
    Reflections on either House 258
    Publication of false or perverted reports of debates 259
    Premature publication or disclosure of committee proceedings 259
    Other indignities offered to either House 260
    Obstructing Members of either House in the discharge of their duty 261
    Arrest 262
    Molestation, reflections and intimidation 262
    Improper influence 265
    Misrepresenting Members 265
    Obstructing oficers of either House 266
    Obstruction or molestation 266
    Legal proceedings against officers, or affecting the House 266
    Obstructing witnesses and others 267
    Arrest 267
    Molestation of or interference with witnesses 267
    Tampering with witnesses 268

    page
    xx Contents

    Legal proceedings against witnesses 269
    Contempt, petitioners and constituents 269
    Petitioners, etc 269
    Constituents and others 270

    Chapter 16 Complaints of breach of privilege or contempt
    Raising a complaint 273
    Hearing of counsel 274
    Consideration of reports of committees on complaints 275
    Proceedings against Members 276
    Complaints against Members or officers of the other House 278
    Complaints reported by committees 278
    Complaints by officers of either House 279
    Disclosure following Secret Session 280

    Chapter 17 The courts and parliamentary privilege
    The opposing views 281
    First phase of the conflict 283
    The second phase: the nineteenth century 287
    Early and mid-twentieth century 291
    The later twentieth century 292
    The Strauss case and the reference to the Judicial Committee 292
    Bilston Corporation v Wolverhampton Corporation 293
    Dingle v Associated Newspapers 294
    Stourton v Stourton 294
    Church of Scientology v Johnson-Smith 294
    British Railways Board v Pickin 295
    Anderson Strathclyde 296
    Zircon 296
    The Australian Parliamentary Privileges Act 1987 297
    Pepper v Hart 297
    Ex p Rees-Mogg 298
    Prebble v TV New Zealand 298
    Defamation Act 1996 299
    Hamilton v Al Fayed 300
    The twenty-first century 301
    A v The United Kingdom 301
    Jackson v Attorney-General 301
    Reliance on parliamentary proceedings 302
    Wheeler 303
    Role of the Courts and the House of Commons: the
    Attorney-General’s view 303
    A new Privileges Act? 303

    PART 3 CONDUCT OF BUSINESS

    Chapter 18 A sitting: general arrangements in the House of Commons
    Days and hours of sitting and rising 307
    Broken sittings 309
    Commencement of sitting delayed 309
    Extraordinary sittings and adjournments 309
    Attendance of Parliament at Divine service 310
    Attendance of Parliament at certain royal ceremonies 310
    Extraordinary adjournments 310
    The moment of interruption 311
    Interruption of business 311
    Dilatory motions and closure 311

    page
    Contents xxi

    Transaction of business after moment of interruption 311
    Disposal of questions pending at moment of interruption 312
    Procedure in committee on questions pending at inter-
    ruption of business 313
    Certain motions after interruption of business 313
    Business not disposed of before the termination of a sitting 314
    Business exempted under various standing orders 314
    Proceedings under Acts of Parliament 315
    Proceedings on European Union documents 315
    Exemption of specified business by order of the House 316
    Suspension of a sitting 317
    Adjournment of the House, after question put 318
    Adjournment of the House, without question put 318
    On Saturday and Sunday 318
    Adjournment in cases of grave disorder 318
    Adjournment beyond the next day of sitting 319
    Quorum of the House 319
    Interruptions of business 320
    Proceedings in secret session 321
    Appearance of Members and peers before the Commons 322
    Sittings in Westminster Hall 322
    Background 322
    Hours of sitting 322
    Business 323
    Procedure 323
    Chapter 19 The control and distribution of time in the House of Com-
    mons
    Introduction 327
    The time available to the House in a session 327
    The length of a session 327
    Times of sitting 328
    Times at which the House normally sits 328
    Arrangement of sittings 329
    Division of sittings between public and other business 329
    Time available for business other than public business 329
    Business taken before the commencement of public
    business 329
    Opposed private business

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