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…”
page
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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