Parliament Blown Open by Hackers


Saturday, November 5th, 2011. 5:02pm


1st edition of Thomas Erskine May's book

1st edition of Thomas Erskine May’s book “A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament”. (Copyright on the 1st edition has expired).

An electronic copy of the text of Erskine May, the book which contains the rules under which which Parliament functions, has today been released by pro-democracy and pro-transparancy hackers.

The book, edited by Sir Malcolm Roy Jack KCB, who was Clerk of the House of Commons while he was editor, and produced with assistance from other parliamentary staff, was previously only available to those willing to pay the retail price of a hefty £267.00.

The text released is that of the current, Twenty-fourth edition, published in 2011.

The release of the full text of the publication on the morning of the 5th of November 2011 appears timed to co-incide with the anniversary of the gunpowder plot and a “rewired state” event at which developers are encouraged to build online tools to open up Parliament.

This opens up, to a much wider group, previously closely held secrets detailing the way our democracy is run. There are details about the types of amendments on motions the speaker will accept, rules and practices which are key to our law making process and understanding what’s going on when watching Parliament on TV or reading the records of debates on TheyWorkForYou.com.
Those who released the material did so with an accompanying statement:

The operations of any Parliament are the kernel of democracy, and that kernel must be open source.

The procedures of the UK Parliament are based on precedent and decisions by the Speaker, which are written and collated by House of Commons staff, and sold for a high price.

While private parties should be free to produce versions for profit, those rules fundamentally must be freely available to all.

We therefore offer you this electronic edition, free.

The process by which it was created will have produced some transcription errors. If you rely on this material for your work, we suggest you purchase a definitive copy.

We hope that #rsparly and other groups, gatherings and geeks will embrace and extend these simple files.

As well as information which might help MPs increase their chances of getting amendments accepted and debated; archaic details are released too, I learnt for example that one of the tellers for the Ayes is supposed to count in the No lobby, this detail, isn’t so far as I can tell openly published anywhere, which might explain why the book notes that inexperienced MPs acting as tellers for the Ayes have in the past both gone to the Aye lobby (and the pair of tellers for the Noes to the No lobby).

Voting Both

There is an interesting section on too on voting “Both”:

Intentionally voting in both lobbies is an accepted way of cancelling out the effect of inadvertently voting in the wrong lobby. However, Members who have voted in both lobbies in the same division have been allowed on the following day to state as a matter of personal explanation (see pp 376-377) in which lobby they intended to vote, and the numbers of the division have been directed to be corrected accordingly. A correction has been directed to be made at the end of government business on the same day after an explanation by a member of the government on his own and a colleague’s behalf. The Speaker has deprecated as ‘unparliamentary’ the practice of voting in both lobbies as a demonstration of a ‘third’ position

I would love to see more MPs explaining which way they intended to vote and why. There needs to be a better system than that associated with voting “Both” though. The procedure detailed in the released material appears to show a handful of MPs voting both on a close division could cause the final result of the division not to be known until the following day when the MPs in question make up their minds / explain their intent.

I suspect these details relating to tellers and voting both might well be of interest to those maintaining the Public Whip website who might in the future be able to better explain what’s going on.

Secret Sessions

The book also contains examples of previous Parliamentary practice on the basis that it might guide what happens in the future. One occurance it notes is that the House of Commons spent around an hour in private, secret, session in the early hours of the morning of the 5th of December 2001. It appears that an adjournment debate, on a motion by proposed by Douglas Hogg the Former Conservative MP for Sleaford and North Hykeham Andrew Selous MP was held during that period. There is no record of what was discussed in the secret session, just a note that it took place.

Distribution

The material appears to have been distributed, by email, to pro-democracy and pro-transparancy campaigners at around mid-day on Saturday.

I was one of the recipients.

The material needs tidying up; there is to be a call from those who released the information for others to work on tidying it up and making it accessible.

Freedom of Information

FOI requests for the material have been rejected, on the grounds it is exempt as it is available by other means (ie. by paying the £267!)

http://www.whatdotheyknow.com/request/erskine_may

Copyright Warning

The book starts with a hefty warning, threatening criminal prosecution of those breaching copyright by distributing it. This is reproduced in the electronic copy:

All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright owner except in accordance with the provisions of the Copyright, Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency Ltd, Saffron House, 6-10 Kirby Street, London ECIN 8TS. Applications for the copyright owner’s written permission to reproduce any part of this publication should be addressed to the publisher. Warning: The doing of an unauthorised act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution.

There is a history of the UK Parliament being opened up by those willing to risk prosecution for breach of copyright. The website TheyWorkForYou which makes it easy to follow MP’s and Lords’ parliamentary activity had to breach copyright law to get started (I suspect it may still be on unclear ground in relation to some of its excellent activities)

Next

Hopefully now the document has been released, first thing Monday morning, we’ll see the UK Parliament see the error of its ways in trying to keep this the distribution of this material restricted to a select elite, accept this approach is now futile, and publish the full and up-to-date version on their website.

The rules governing how Parliament is run must be available to all, from an authoritative source, for democracy to function.

If a publishing company (or anyone else) wants to take the material produced by Parliament’s staff and form it into a pretty, physical, book and try and sell it, fair enough, but the information coming out of Parliament ought be freely accessible to all.

See also

The House of Commons – Standing Orders – those elements of the rules which are currently made public by the parliamentary authorities.

If anyone spots the released material in the wild online somewhere do add a link in the comments.

46 comments/updates on “Parliament Blown Open by Hackers

  1. SecretSession

    The ‘Secret Session’ to which the article, in reality, was not a discussion about anything secret (indeed the Order Paper for the day will almost certainly tell you what it was on.

    Instead, what occurred was that an MP moved a motion that the House sit in private, and because no one objected (in error), the House had no choice but to sit for the rest of the day in private.

  2. Richard Taylor Article author

    JR,

    Any of those holding a copy will risk criminal prosecution (and a serious risk of being ordered by a court to pay substantial damages/compensation) if they publish it. It may find its way online. Once something’s been released it’s very hard to reign it back in.

  3. Richard Taylor Article author

    Secret Session,

    The order of business for the day is at:
    http://www.publications.parliament.uk/pa/cm200102/cmagenda/ob011204.htm

    The scheduled adjournment debate was “Social services in Bedfordshire”.

    A commons fact sheet states:

    The House last sat in private on the 4 December 2001 when it was debating the Anti Terrorism, Crime and Security Bill.

    The record of the debate shows what happened was, during the debate on the Anti Terrorism, Crime and Security Bill, Liberal Democrat MP Paul Tyler called for the house to sit in private as a way of forcing a vote, any vote.

    While this was done at ten to one in the morning, it still had the effect of the rest of the session continuing in secret. We don’t know what was discussed in Parliament in that hour. One would expect the end of the Anti Terrorism, Crime and Security Bill debate followed by the adjournment.

  4. Jack

    Suggest someone with a copy anonymously uploads a torrent for distribution? I’d probably be too paranoid that I’d sufficiently anonymised it, though!

    Hopefully a prominent leak will encourage parliament to honour lipservice to transparency by making it available online – but I suspect that it’s far more likely to be viewed as an infraction of some sort!

  5. Richard Taylor Article author

    It appears to me after having had access to Erskine May for a few hours that a good fraction of its content is already present in the Standing Orders of each house and the Companion to the Standing Orders and guide to the Proceedings of the House of Lords.

    http://www.publications.parliament.uk/pa/ld/ldcomp/compso.htm

    Perhaps we need a companion to the Commons’ standing orders too?

    What would help significantly is if MPs and the speaker, referred to the documents published by Parliament rather than Erskine May when they could do so.

    The Parliamentary documents appear to be better written and better referenced in any case; they appear to be the higher quality resource.

  6. Richard Taylor Article author

    p165 of Erskine May appears to contain a paragraph key to the current news stories surrounding Prince Charles’ veto on Bills:

    Bills affecting the prerogative (being powers exercisable by the Sovereign for the performance of constitutional duties) 12 on the one hand, or hereditary revenues, personal property or interests of the Crown , the Duchy of Lancaster or the Duchy of Cornwall 13 on the other, require the signification of Queen’ s consent in both Houses before they are passed. When the Prince of Wales is of age, his own consent as Duke of Cornwall is given.

  7. Richard Taylor Article author

    p440 states:

    Treasonable or seditious language or a disrespectful use of Her Majesty’s name are not permitted. Members have not only been called to order for such
    offences, but have been reprimanded, committed to the custody of the Serjeant
    or, in the distant past, even sent to the Tower.

    Sedition is he stirring up of rebellion against the government in power. How is the opposition supposed to operate freely and effectively with that rule in place?

  8. Richard Taylor Article author

    My electronic copy of Erskine May has enabled me to make a number of comments on the record of parliamentary debates on TheyWorkForYou.

    1. http://www.theyworkforyou.com/debate/?id=2006-02-14b.1283.4&u=17044#c28823

    This shows how a speaker’s ruling in a specific case has been turned into a general rule by those writing “Erskine May”. I think this either brings the quality and authority of the publication into question, or shows it is doing more than merely recording past practice, and is creating the rules of parliament.

    2. http://www.theyworkforyou.com/debate/?id=2011-10-27c.504.1&u=17044#c28824

    While Erskine May requires ministers to be accurate and truthful when addressing (or writing) to parliament there are no provisions requiring members in general to tell the truth. The lack of a requirement for MPs to tell the truth is compounded as member is not permitted to say another member has lied; that’s considered unparliamentary).

    3. http://www.theyworkforyou.com/debate/?id=2011-09-12d.778.1&u=17044#c28826

    Departments must supply parliament with all papers relevant to a forthcoming debate. Ministers must make available government documents they quote from.

    4. http://www.theyworkforyou.com/debate/?id=2011-09-07b.378.5&u=17044#c28827

    While the Speaker often claims Erskine May states:
    “temperate language, moderation and good humour” are required by Erskine May.

    What Erskine May actually says is:

    “Good temper and moderation are the characteristics of parliamentary language.”

    5. http://www.theyworkforyou.com/debate/?id=2011-07-11b.55.2&u=17044#c28828
    Erskine May appears to be the only place where the procedure for an MP to raise a “privilege complaint” is detailed.

    6. http://www.theyworkforyou.com/debate/?id=2011-07-07a.1715.0&u=17044#c28829

    The electronic copy of Erskine May makes it easy to highlight where a minister has selectively quoted from it.

  9. Dean

    My local libraries (closest thirty) don’t have one either. The closest one is the 2004 edition, is 30 miles away and is not for loan.

    My library uses the same broken online catalogue system.

  10. Richard Taylor Article author

    During PMQs in the Commons on the 18th of January 2012 the prime minister called Dennis Skinner a dinosaur.

    Later points of order were raised questioning if this was permitted. MPs suggested Erskine May prohibited MPs calling each other animal names.

    Mr Speaker said that provision was not in the current edition of Erskine May and suggested it had only ever applied to live animals in any case.

    I have searched the edition of Erskine May which I have a copy of and can confirm there is no specific rule against MPs calling each other animal names.

  11. Phil Rodgers

    There is the (no doubt apocryphal) story of an MP saying “The honourable gentleman has the manners of a pig”. When the speaker asked him to withdraw the remark, he said “I apologise, Mr Speaker. The honourable gentleman hasn’t the manners of a pig.”

  12. Richard Taylor Article author

    I can’t find that reference but in 1986, then MP Mr Doug Hoyle (Warrington North) described a fellow MP’s speech as being delivered:

    with the manners of a house-trained aardvark

    He appears to have got away with that one without any rebuke from the speaker.

    Link to speech on TheyWorkForYou

  13. J R

    Rather disappointed that this leak to a select few hasn’t resulted in the book’s availabilit online.

    What was the point of providing it to pro-transparency campaigners if they’re just going to keep it to themselves?

  14. John Swainson (UK)

    As Erskine May prseumably wrote his original treatise while a paid servant of the Crown surely that volume belonged to the Crown as Crown copyright, and thus the public. By what route did successor volumes, which surely draw heavily on that original copyright material, become owned by a private company? As others have said, we have a democratic right to see every piece of guidance used to inform the actions and behaviour of those whom we elect to govern us.

  15. Richard Taylor Article author

    On the 10th of September 2012 Jacob Rees-Mogg MP stated:

    …ask why we did not have a more à la carte Europe, to use a French term, if I may, Mr Deputy Speaker, against the preferred guidance of “Erskine May” that one should stick to English.

    Page 429 of Erskine May states:

    Manner of speaking
    Members must address the Speaker and not direct their speeches to the House or to any party on either side of the House. Speeches must be made in English, but quotation in another language has been allowed on occasion, though a translation should be provided.

    The House resolved on 5 June 1996 that, ‘whilst English is and should remain the language of this House, the use of Welsh be permitted in parliamentary proceedings held in Wales, subject to the conditions set out in the Third Report from the Select Committee on Procedure’. In 2001 the House agreed to that Committee’s further recommendation that witnesses before select committees at Westminster should be able to give evidence in Welsh. The Welsh Affairs Committee took evidence in Welsh at Westminster for the first time on 9 April 2003

  16. Richard Taylor Article author

    On Monday the 22nd of October 2012 The Speaker referred to p202 of Erskine May in response to a point of order from an MP who was complaining he wasn’t getting answers to his questions.
    (TheyWorkForYou Link)
    The section referred to is titled “Ministerial Accountability to Parliament” and states:

    Ministers should be as open as possible with Parliament, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with relevant statute, and the government’s Code of Practice on Access to Government Information (second edition, January 1997)

    See also a resolution reaffirming the principle that Ministers should be as open as possible with Parliament, Cl (1997-98) 667.

    The resolution referred to appears one of the 19th of March 1997 available at:
    http://www.theyworkforyou.com/debates/?id=1997-03-19a.1046.5

    The text is also incorporated into the Ministerial Code, as section 1.2 parts b-e:
    http://www.cabinetoffice.gov.uk/resource-library/ministerial-code

    The Hansard reference is (Official Report columns 1046-47), not “667″ as in the now ~£280 book.

  17. Pingback: Erskine Should – on the 200th anniversary of Erskine May’s birth | DisruptiveProactivity.com

  18. Richard Taylor Article author

    On the 28th of February Jacob Rees-Mogg MP stated there were no Liberal Democrats in the House of Commons Chamber. He appeared to have been heckled and his attention drawn to one in the gallery.

    Deputy Speaker Lindsay Hoyle: Order. The hon. Gentleman knows that we make no mention of the Galleries, only this Chamber.
    Jacob Rees-Mogg : That is why I did not see anybody in them, Mr Deputy Speaker. Although, there is, as you know, the right to speak from the Gallery in the event that the House is full. Sadly, it is not full today.
    Deputy Speaker Lindsay Hoyle: I think that that is something of the past, not of the present.
    Jacob Rees-Mogg : No, it is still in “Erskine May” and—
    Deputy Speaker Lindsay Hoyle: I can help the hon. Gentleman a little more. It is also up to the Chair to decide who speaks, and on this occasion I have decided to hear a little more from Jacob Rees-Mogg.
    Jacob Rees-Mogg : I am very grateful, Mr Deputy Speaker, although I will let you into a secret: one of my ambitions is to speak from the Galleries one day. I think that it was last done in the 1950s.

    Source on TheyWorkForYou

    Erskine May states:

    in the House of Commons the side galleries are largely reserved for Members (for only 350 of whom seating is provided on the floor of the House). A Member may speak from these galleries (though he would not normally be called by the Chair unless there was no room on the floor of the House on the side on which he usually sits but not from below the Bar, where there is also seating).

    I suspect the TV cameras would have trouble recording a MP speaking from the galleries.

  19. Richard Taylor Article author

    On Monday the 7th of April 2014 the Speaker refered to p396 of Erskine May; when responding to a point of order on MP’s expenses.

    The relevant section states:

    Unless the discussion is based upon a substantive motion, drawn in proper terms (see pp 392, 396) Reflections must not be cast in debate upon the conduct of … Members of either House of Parliament

    P 396, which the speaker cited, states:

    Rules governing the form and subject-matter of motions
    Certain matters cannot be debated except on a substantive motion which allows a distinct decision of the House. These include the conduct of the Sovereign, the heir to the throne or other members of the royal family, a Governor-General of an independent territory, the Lord Chancellor, the Speaker, the Chairman of Ways and Means, Members of either House of Parliament and judges of the superior courts of the United Kingdom, including persons holding the position of a judge, such as a judge in a court of bankruptcy, a circuit or county court judge, or a recorder. Such matters cannot , therefore, be raised by way of amendment, or an adjournment motion. For the same reason, no charge of a personal character in respect of these categories of person can be raised except on a direct and substantive motion. No statement of that kind can be incorporated in a broader motion nor, for example, included in a reply to a question.

    Bolding of Members of either House of Parliament was mine.

  20. Richard Taylor Article author

    I’ve used what’s apparently included in Erskine May while reviewing the way PubilcWhip and TheyWorkForYou treat tellers when making statements derived from an MP’s participation in a vote.

    I found the following section from p412 useful:

    The Speaker or Chairman … appoints two tellers for each side of the question. One teller for the ayes and one for the noes go to each lobby, to check each other in the telling. A Member is bound to act as teller for that side of the question with which he has declared himself, when appointed by the Speaker, and refusal to do so would be reported to the House. A Member cannot act as a teller on a question for his own suspension.

    This indicates to me that a teller can be seen to be supportive of the side of the vote he tells for. ie. a teller for the ayes can be treated just like someone who voted for the ayes when it comes to making a statement of their position on a policy. It appears that a member is only required to act as a teller for the ayes if they shouted “aye” when the question was put to the house (members declaring themselves is the wording used in Erskine May for the process of members shouting “aye” or “no” when a question is put by the chair). A teller for the ayes has either volunteered to align themselves with the ayes by accepting being appointed as a teller, or had already aligned themselves with the ayes by shouting “aye”.

    From p415 of Erskine May there is a litany of things tellers have done wrong, or where they have tried to push the system.

    When one teller doesn’t do their job the question has been put again; where both tellers for one side fail to do their job the vote is declared in favour of the other side.

    On p416 Erskine May states:

    When, through inexperience, both tellers for the ayes counted at the Aye lobby and both tellers for the noes at the No lobby, the Speaker was prepared to accept the accuracy of the result on the basis that, if necessary, it could be checked against the division list.

    There is also a section, on p417, describing when tellers have attempted to vote themselves but their efforts have been thwarted:

    On one occasion one of the tellers voted in the No lobby before acting as teller: he reported the fact after the numbers had been reported by the tellers but before the result of the division had been declared. The Speaker directed his name to be struck from the noes and declared the correct numbers. On another occasion, on the tellers being called to the Table and before they had stated the numbers, a Member reported that one of the tellers had voted in the lobby before acting as a teller. The Chairman thereupon directed the House to proceed again to a division.

    Telling in the House of Lords appears to be even more interesting as the Companion to the Standing Orders and guide to the Proceedings of the House of Lords reports that there the tellers get wands:

    Tellers must give their names to the Clerk at the Table, and state whether they are telling for the Contents or Not-contents and in return they receive a wand and a counter.

    There is very little official information about the process of voting by MPs in the House of Commons so it would not come as a surprise to me if I learned the tellers there get wands too; however I can find no mention of such a practice anywhere.

  21. Ed Jones

    It would be useful if an e-book version of the Erskine May was produced and distributed and/or the the text was cleared up on the link given above. Many of the page links don’t work, the text is in different fonts, many pages aren’t given page numbers, etc etc. In its current format it is not easy to read…

  22. Richard Taylor Article author

    Green MP Caroline Lucas had a written question answered on the 14th of July 2014:

    To ask the hon. Member for Caithness, Sutherland and Easter Ross, representing the House of Commons Commission, if he will take steps to make the latest edition of Erskine May’s Parliamentary Practice available free of charge online.

    The answer given by John Thurso MP (Caithness, Sutherland and Easter Ross, Liberal Democrat) was:

    Erskine May’s “Parliamentary Practice” is published by Butterworths under an exclusive licence granted by the trustees of the May Memorial Fund, registered charity 306057, who own the copyright to the work. I understand that the trustees are considering under what financial arrangements it might be practicable to make a digital version of Erskine May available online.

  23. Richard Taylor Article author

    On Monday the 10th of November during a debate on the draft Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014.

    Yvette Cooper MP moved the following motion:

    That the question be not now put

    p404 of Erskine May states:

    Use of the previous question

    Occasionally, the previous question is moved in order to withhold from the decision of the House a motion that has been proposed from the Chair. The form in which the previous question is put to the House is ‘That the question be not now put’. The House is thus compelled to decide in the first instance whether the original motion shall or shall not be submitted to the House. If the previous question is agreed to, the Speaker is prevented from putting the original question, as the House has refused to allow it to be put. The original motion, however, may be brought forward again on another day, as the decision of the House binds the Chair not to put the question on that motion only at that time. If the previous question is negatived, the original question on which it was moved must be put forthwith. No amendment, debate or motion for adjournment is allowed, because the House has negatived the proposal, ‘That the question be not now put,’ and the question must therefore be put at once to the vote.

    The motion for the previous question, unlike a motion for closure, is debatable. It may not be moved while another Member is speaking. The Chair has declined to accept an attempt to move the previous question by a Member who had already exhausted his right to speak in a debate.

    It appears Yvette Cooper MP was not happy with the motion being debated by the House of Commons so deployed this motion in order to bring the debate to an end.

    The motion was lost, and the substantive motion, on the draft regulations was put to the house. (On the basis that opposing “that the question be not now put” is an expression of a wish that the question be put to the house immediately)

    The motion was last moved by MP David Heath in 2009 and before that it was last used in 1989.

    My View

    Once the motion had been moved there was no option for MPs to vote to continue their debate. The choice before MPs was either to stop their consideration of the matter before them completely, or to move straight to a decision.

    Our system appears broken if one MP can force a debate be curtailed.

  24. Richard Taylor Article author

    Page 445 of Erskine May states:

    Citing documents not before House
    A Minister of the Crown may not read or quote from a despatch or other State paper not before the House, unless he is prepared to lay it upon the Table. Similarly, it has been accepted that a document which has been cited by a Minister ought to be laid upon the Table of the House, if it can be done without injury to the public interest.

    During Prime Ministers questions on the 17th of December 2014 the Prime Minister brandished and quoted from a briefing to Labour MPs which he had obtained a copy of. I don’t know if this counts as a “despatch” and if he ought be required to publish it on Parliament’s website (which is the effect of “laid upon the Table”).

  25. Richard Taylor Article author

    The Speaker’s Digital Democracy Commission published a report on the 26th of January 2015 which recommended making the next edition of Erskine May “freely available online”. The matter is considered in Section 11 of the report.

    I think this is a positive step, but “freely available online” leaves room for ambiguity, it doesn’t for example deal clearly with questions of licensing and copyright. I might hopefully assume that “freely available” means released into the public domain, but others might think publishing an image of the text online would be sufficient.

    My own recommendation, as I first suggested in November 2011, would be to replace “Erskine May” with a “A Guide to the Workings of the House of Commons”. There could be a note underneath the title saying “formerly known as “Erskine May”. The guide could be modelled on the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, and provided online with a unique link to each section.

    The relevant paragraph of the Speaker’s Digital Democracy Commission’s report states:

    1.6 Erskine May

    Parliamentary insiders will tell you that the “bible” of how to run Parliament is Erskine May, an encyclopedia of parliamentary procedure. It is named after Thomas Erskine May, the former Assistant Librarian of the House of Commons, who wrote the first edition in 1844. At present you can get Erskine May only as an expensive hardcover book, which makes it inaccessible not only to the average citizen but also to many parliamentary staff.

    The Speaker’s Commission fully supports the recommendation of the House of Commons Governance Committee that the arrangements for the publication of Erskine May should be reviewed. We agree with the Committee that “this important work, central to our constitution, should have an audience beyond parliamentary experts” and that opening the publication “to all in Parliament and beyond will demonstrate the determination of the House to make the workings of Parliament understood by a wider range of staff and the public.”[11] We believe that it should be freely available online. This should also reduce Parliament’s costs. To this end, the DDC recommends that, as a matter of urgency, Erskine May should be freely available online for any citizen to access.

    This is followed by recommendation 32:

    32. We recommend that Erskine May, the definitive guide to parliamentary procedure, should be freely available online by the time the next edition is produced.

  26. Richard Taylor Article author

    MP Jacob Rees-Mogg mentioned Erskine May three times in a committee session on the National Health Service (Amended Duties and Powers) Bill on the 4th of February.

    Mogg first complained about which doors to the room were unlocked saying:

    Members ought to be able to come in through the door that is marked for Members.

    There was no Erskine May reference there but it sets the context.

    There was then a long debate about what time in the morning the committee should start meeting. The first Erskine May reference from Mogg stated the expensive tome states committees can amend their sitting hours for future meetings. I can’t see a relevant section in Erskine May but standing order 88 states “the committee shall meet further to consider the business on such days of the week and at such times as may be appointed by the committee…”

    Mogg then questioned if an allegation of filibustering was “parliamentary language” within the terms of Erskine May’s definition. The relevant section of Erskine May states:

    Good temper and moderation are the characteristics of parliamentary lan- guage. Parliamentary language is never more desirable than when a Member is canvassing the opinions and conduct of his opponents in debate.

    It is not out of order, however, to cast aspersions on former Members of the House, even if they are Privy Counsellors. Offensive expressions against the character and conduct of Parliament itself are not permitted, since not only are they a contempt, but they may also tend to degrade the legislature in the public estimation. Reference in debate to either House of Parliament must therefore be courteous. Similarly, although it is perfectly in order to criticise the role and functions of the other House, abusive language and imputations of false-hood uttered by Members of the House of Commons against Members of the House of Lords have usually been met by the immediate intervention of the Chair to compel the withdrawal of the offensive words, or, in default, by the punishment of suspension. While reference may be made to Members of the House of Lords in relation to their acts in another capacity, any reflection on their conduct must be based on a substantive motion.

    Expressions which are unparliamentary and call for prompt interference include:

    • (1) the imputation of false or unavowed motives;
    • (2) the misrepresentation of the language of another and the accusation of

      misrepresentation;

    • (3) charges of uttering a deliberate falsehood;
    • (4) abusive and insulting language of a nature likely to create disorder. The Speaker has said in this connection that whether a word should be regarded as unparliamentary depends on the context in which it is used.

    Expressions are still unparliamentary even when based on a quotation from elsewhere.

    Mogg also stated later in the session, following a complaint about the lack of heating in the committee room:

    “Erskine May” records that a motion may be moved for a candle to be brought in, which was used when the lighting failed in the old Chamber. I wonder if it would be possible to move a similar motion to ask that candles be brought in.

    Erskine May does mention candles, it states:

    The business of the House was in former times interrupted by a motion that candles be brought in: but by an order of 1717 the Serjeant was charged with the duty of having the House lighted when ‘daylight be shut in’ . It is in pursuance of this order that the Serjeant provides emergency lanterns in the Chamber if the electricity fails (HC Deb (1986-87) 105, c 742).

  27. Richard Taylor Article author

    http://www.whatdotheyknow.com

    From p361 of Erskine May there is a list of types of question to ministers which have been ruled out of order:

    1. Questions asking whether statements accurate.
    2. Questions on the details of despatches from United Kingdom diplomats.
    3. Questions on matters under the control of local government, companies or other bodies such as trade unions.
    4. Questions on the day to day running of nationalised industries.
    5. Questions which relate to the evidence of witnesses before a Royal Commission or Parliamentary committee, and specifically proceedings in committee which have not been reported to the House of Commons.
    6. Questions addressed to a royal court official or referring to the action of a court official.
    7. Questions on ministers’ actions for which they are not responsible to Parliament.
    8. Questions seeking an opinion on a question of law.
    9. Questions to a minister on a matter which another minister is more directly responsible for.
    10. Questions seeking legislation to deal with specific matters outside of a minister’s power and responsibilities.
    11. Questions suggesting amendments to Bills.
    12. Questions relating to opposition party policies.
    13. Questions on matters devolved to the National Assembly for Wales, the Northern Ireland Assembly or the Scottish Parliament

    Even in these cases it’s still up to the Speaker to make a judgement on the specific question – these are just examples of areas where questions have been ruled out of order in the past.

  28. Richard Taylor Article author

    On the 3rd of November 2015 MP Christopher Chope asked a question in the House of Commons on the Parliamentary Assembly of the Council of Europe. He asked:

    To ask the Leader of the House of Commons if he will make a statement about the rationale that was applied in determining which members of the UK delegation should be reappointed to the Parliamentary Assembly of the Council of Europe.

    His supplementary question asked:

    Friend what consultation has been carried out with political parties, as specified on page 174 of “Erskine May”?

    The relevant section of Erskine May states:

    Representation and credentials
    The Statute of the Council of Europe provides that the Assembly shall consist of Representatives of each Member State elected by its Parliament from among its Members or appointed from among the Members of that Parliament in such manner as it shall decide. A Representative who is prevented from attending a sitting of the Assembly may be replaced by a Substitute of the same nationality. Thus for each Delegation there is an equal number of Representatives and Substitutes. In January 2011 the total number of members of the Assembly was 636 (plus 30 observers). In the absence of a Representative, a Substitute may sit, speak and vote in his place and enjoy the same rights in the Assembly. Substitutes may be full members of committees. The credentials of each Delegation are ratified by the Assembly following its appointment; thereafter, the credentials of Delegations are presented annually to the Assembly for ratification.

    The composition of the United Kingdom Delegation, which contains Members of both Houses, broadly reflects the balance of parties in the House of Commons. The names of the Delegation are announced by the Prime Minister, normally in a written ministerial statement, after consultation with the political parties. The composition of the Delegation is altered by the same means when necessary. It is usual for the party composition of the United Kingdom Delegation to be changed and a new Delegation Leader nominated on a change of Government

  29. Galava

    Does Erskine May cover what could happen in a period such as now when there is no parliament, as the govt. has called a general election, and then if there is a national emergency which prevents the general election happening? Can a general election be cancelled by the prime minister? Can the date be changed once announced? How long can the country be run without a parliament in those circumstances?

    1. Richard Taylor Article author

      No, there’s nothing in the released version of Erskine May on this subject. In respect of an early general election we would have to look to the Section 2 Fixed-term Parliaments Act 2011 which states:

      the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister

      While it’s not specifically dealt with, and it would be down to interpretation, I suspect that the monarch on recommendation of the Prime Minister could change the date.

      The Prime Minister and other ministers remain in office during the election period.

  30. Richard Taylor Article author

    There is currently a lot of discussion about when a no-confidence motion could be tabled. The leaked Erskine May text I received states:

    Confidence motions

    From time to time the Opposition puts down a motion on the paper expressing lack of confidence in the Government or otherwise criticising its general conduct. By established convention the Government always accedes to the demand from the Leader of the Opposition to allot a day for the discussion of a motion tabled by the official Opposition which, in the Government’s view, would have the effect of testing the confidence of the House. In allotting a day for this purpose the Government is entitled to have regard to the exigencies of its own business, but a reasonably early day is invariably found. This convention is founded on the recognized position of the Opposition as a potential government, which guarantees the legitimacy of such an interruption of the normal course of business. For its part, the Government has everything to gain by meeting such a direct challenge to its authority at the earliest possible moment.

    I suspect that a failure of the House of Commons to support a motion sending a note of thanks to the monarch for reading out the programme of government would be interpreted as a vote of no-confidence in itself, and the Speaker should allow a motion of no confidence to immediately follow such a defeat.

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