Washminster

Washminster
Washminster

Saturday, 31 October 2009

Blitz Night

Tonight, a mile and a half from my home, there will be the first of many firework displays. At Bletchley Park there will be a display which I hope to attend. We went for the first time last year (along with 7000 other people) - and it's worth going to.




Doors open at 6.30pm and the fireworks get underway at 8.00pm. Admission is £3 for adults and £1 for children. The proceeds go towards the Bletchley Park, which runs the historic museum.

We are promised that "As the rousing wartime music rings out and the spectacular firework display sets the sky alight, visitors can warm themselves with delicious burgers from the barbeque and a drink or two from the bar, while the children enjoy the traditional fun fair."

This time of year has been associated with fireworks for centuries. The year after the "Gunpowder Plot" was thwarted was the first Day of National Thanksgiving for deliverance from this attempt to murder the leadership of the country. It was a statutory thanksgiving day until 1859.

Friday, 30 October 2009

Time

In both the Westminster Parliament and the US Congress (and all legislative bodies) - time matters! Time is required for legislative proposals to be discussed and developed. Holding to account those who exercise power requires time for questions to be put and answered. If matters of concern to the nation and pressing issues affecting citizens are to be discussed then time is needed. For this reason the allocation of time is one of the most hotly contested issues in both legislatures.

In the House of Commons Standing Order 14 (full S.O.s here) Government business has precedence at all time, save for the exceptions set out. (Opposition Days; Private Members' Time). The use of Programme Motions (SOs 83A-I) gives great power to the Government to get its business through.

The allocation of time in the House of Lords is negotiated through the "usual channels" (usually the party whips, but the term can have a wider meaning which includes other leadership posts and representatives of the Crossbenchers). Peer pressure (pun intended) generally keeps business ticking over (and restrain those who would talk too much) - though carefully laid plans can be easily derailed.

The majority in the House of Representatives enjoys considerable advantages in controlling time and the flow of business. The Rules Committee - which can issue "Special Rules" allocating and restricting time (and potential amendments) on particular bills and resolutions - plays a key role.

In the Senate the majority has a harder time controlling the flow of business. While the "cloture" rule (only introduced in 1917) can defeat a filibuster - the need for 60 votes, plus the time for the cloture procedure to run its course gives a headache for the Majority Leader (or any Senator seeking to get legislation passed).

In all Houses methods have been developed which minorities can use to 'hijack' time or slow down the majority. These range from the filibuster to "points of order". Each House has its own procedures and practices both to slow (and even stop) business and to get business through. Some of these will be considered in future Washminster posts.

Thursday, 29 October 2009

The Census

As fans of "The West Wing" will recall (Mr Willis of Ohio), the constitutionally required Census raises a number of sensitive issues.



Already the debate about the 2010 census is causing controversy. This press conference occured a few days ago.

Wednesday, 28 October 2009

Westminster Business 28 Oct



David Morgan previews the days business in both Houses of Parliament.

Prayers

The first item of business in all four Houses covered by this blog (UK - Commons; Lords US - Representatives; Senate)is prayers. The main difference being that whilst in the USA the public can see prayers (and the prayers may include them) - in the UK prayers are held in private. No one is allowed into the visitors galleries until prayers are finished.

It is believed that prayers at the start of Commons' business dates back to about 1558.

In the Commons the Speaker's Chaplain usually reads the prayers. The form of the main prayer is as follows:

"Lord, the God of righteousness and truth, grant to our Queen and her government, to Members of Parliament and all in positions of responsibility, the guidance of your Spirit. May they never lead the nation wrongly through love of power, desire to please, or unworthy ideals but laying aside all private interests and prejudices keep in mind their responsibility to seek to improve the condition of all mankind; so may your kingdom come and your name be hallowed.

Amen."

The prayers in the Lords are led by one of the 26 bishops who sit in the House. (if all are unable to attend there are a number of ordained ministers who could substitute). The prayers which are used are listed here.

Both houses of Congress have their own chaplains - though guest chaplains may be invited.

In a recent interview the Senate Chaplain discussed his role (which caused some controversy because, unlike in the UK, there should be separation of Church & State)


Monday, 26 October 2009

Latest List of Bletchley Park EDM signatories

FUNDING FOR BLETCHLEY PARK 20.07.2009

Willis, Phil 68 signatures
Banks, Gordon Barrett, John Borrow, David S
Boswell, Tim Bottomley, Peter Breed, Colin
Burns, Simon Burt, Lorely Campbell, Ronnie
Caton, Martin Clapham, Michael Clark, Katy
Cook, Frank Cousins, Jim Crausby, David
Cryer, Ann Davey, Edward Dean, Janet
Dismore, Andrew Dodds, Nigel Dowd, Jim
Drew, David Etherington, Bill Evans, Nigel
Foster, Don George, Andrew Gray, James
Hall, Patrick Hancock, Mike Harvey, Nick
Hepburn, Stephen Hermon, Lady Holmes, Paul
Hopkins, Kelvin Howells, Kim Hoyle, Lindsay
Hughes, Simon Hunter, Mark Iddon, Brian
Illsley, Eric Jackson, Glenda Jenkins, Brian
Jones, Lynne Lancaster, Mark Leech, John
McCafferty, Chris McCartney, Ian McDonnell, John
Oaten, Mark Opik, Lembit Pound, Stephen
Pugh, John Robinson, Iris Russell, Bob
Simpson, Alan Smith, Geraldine Soames, Nicholas
Stringer, Graham Taylor, David Truswell, Paul
Vis, Rudi Wareing, Robert N Webb, Steve
Williams, Betty Williams, Stephen Winterton, Ann
Wyatt, Derek

UK Supreme Court

This is the C-SPAN coverage of the recent opening of the UK's Supreme Court.

The use of technology to give transparency in Government

C-Span broadcast this programme last week. It also gives an insight into the workings of the President's administration (the 'real' "West Wing")

Sheeplike MPs?

"Gutless and feeble, today's politicians are too willing to do what their political masters tell them; terrified to follow their own consciences for fear of what might happen to them, they can be led by the nose to vote for almost anything put before them".

Many might agree with this comment about the sheeplike nature of MPs in the House of Commons. Actually this quote appears at the start of a book by Philip Cowley in which he goes on to say "like so much received wisdom, it is almost entirely wrong."


Philip Cowley now runs an extremely useful website on Commons rebellions. It can be accessed here.

Sunday, 25 October 2009

And the time is....?

British Summer Time ended this morning - so the clocks have gone back in Westminster. Daylight Savings ends in Washington NEXT Sunday - so the time difference this week is only FOUR HOURS.

WESTMINSTER



WASHINGTON

Centre for Legislative Studies

This research centre based at the University of Hull was founded in 1992. The Centre Director (and co-founder) is Philip Norton, otherwise known as Lord Norton of Louth. He is a world renowned authority on the British Parliament and legislatures generally. The list of his publications is long. My particular favourites are Parliament in British Politics (which is a replacement for his earlier - Does Parliament Matter?) and Dissension in the House of Commons, 1974-79 (He also wrote Dissension in the House of Commons which covered the period 1945-74, but the Labour Government of 1974-79 has always been a particular research interest of mine). He is the most active blogger on Lords of the Blog. and did a short interview for Washminster on Parliamentary Reform (recorded in Westminster Hall). The much respected Online MA in Legislative Studies is co-ordinated by Cristina Leston Bandeira.

The Centre runs the Workshop of Parliamentary Scholars and Parliamentarians which is held every two years at Wroxton. It is also responsible for the Journal of Legislative Studies

A brochure for the Center can be downloaded here.

Saturday, 24 October 2009

Ben Franklin

One of the greats of world history, Ben Franklin was a giant of the American Revolution, who had strong roots in England. In his autobiography he describes the home of his ancestors in Ecton, Northamptonshire - and his heritage as a "rebel"

"This obscure family of ours was early in the Reformation, and continued Protestants through the reign of Queen Mary, when they were sometimes in danger of trouble on account of their zeal against popery. They had got an English Bible, and to conceal and secure it, it was fastened open with tapes under and within the cover of a joint-stool. When my great-great-grandfather read it to his family, he turned up the joint-stool upon his knees, turning over the leaves then under the tapes. One of the children stood at the door to give notice if he saw the apparitor coming, who was an officer of the spiritual court. In that case the stool was turned down again upon its feet, when the Bible remained concealed under it as before."

He was to visit the church at Ecton, where his relatives graves can still be seen - and the site of the family home. That is now the Three Horseshoes pub in the High Street.

Close to Westminster is "Ben Franklin's House" - where he lived for nearly sixteen years, prior to the American Revolution. One afternoon I will take a walk up to the House to visit it!

Friday, 23 October 2009

A Radical History of Britain

I have thoroughly enjoyed reading Edward Vallance's "A Radical History of Britain". Westminster - as I noted yesterday - is decorated according to historical preferences of those in the 19th Century. Some radicals are recognised, others have less prominence. For example there is no statue of John Wilkes - but there is a fine painting (with an excellent description of him as a campaigner for press freedom and parliamentary reform) just inside the Members Dining Room.
The "history" portrayed at Westminster is a little one sided - monarchy is generally good; the French are definitely bad....

Vallance's book is a refreshing contrast to the history of Kings and conformists. He sets out the tradition of radical thought and action in Britain - which is often overlooked. There are individuals described who came from Britain - but influenced events around the world - like Thomas Paine! The Peasants Revolt; Cade's Rebellion; the events surrounding the English Civil War and the Glorious Revolution; the struggle for extension of the suffrage; and the Suffragettes are all described.

All Brits should read this book - Americans can read of our shared tradition - and any citizen of the world can find this an interesting read.

The Facebook site for the book can be accessed from here.
A Guardian Review can be accessed here.

Thursday, 22 October 2009

One Minute Speeches

One way that members of the House of Representatives can get a message across is by coordinated use of "One Minute Speeches". A CRS Report states -

"One-minute speeches are normally given at the start of the legislative day, but may occasionally occur at other times in the legislative program. Customarily, after the daily prayer, the Pledge of Allegiance, and approval of the previous day’s Journal, Members ask for unanimous consent to address the House for one minute on a topic of their choice.

Recognition for one-minute speeches is at the prerogative of the Speaker, who may limit daily speeches to a certain number, or to a different place in the program, on any given day. Members seeking recognition for this purpose sit in the first row on their party’s side of the chamber. Recognition for one-minute speeches alternates between the majority and the minority, with possible exceptions for Members of the leadership, and Members having business requests
."

An example of their use came this week. Democrats used their time to press home the message about the Republican stalling tactics on healthcare. These clips were then posted to "Youtube" by the Speaker. Note the use of a visual aid - something not permitted at Westminster.

From: Office of the Clerk

10:03 A.M. -

ONE MINUTE SPEECHES - The House proceeded with one minute speeches, which by direction of the Chair would be limited to 15 per side of the aisle.








Who's honoured at Westminster?

I sometimes take small tours around the Palace of Westminster. The Palace is a fascinating building - but very much a product of its time (as I discovered late last week when I needed to use the bathroom - two sets were out of action so I had to hike to the 1st Floor (which in Westminster's strange pattern is above the Ground Floor, the Principal Floor - and any basements)).

Last Friday was the 175th anniversary of the Great Fire of Westminster - only Westminster Hall survived from the medieval palace. The Palace we know was built in the thirty years after the fire. [trivia facts for the day - its existing buildings containing nearly 1,200 rooms, 100 staircases and well over 3 kilometres (2 miles) of passages.]

On my tours I point out the many statues and paintings which honour some of the characters who played a part in the history of this building and institution. Prime Ministers and Lord Chancellors are well represented - some individuals who are long (and deservedly) forgotten - and some heroes of the struggle for a parliamentary democracy based on the rule of law.

The nobles who forced King John to sign the Magna Carta are honoured in the House of Lords - where their statues look down upon the current Peers. The great men who played a role in the battle against Charles I and his attacks upon Parliament are honoured - John Hampden can be found in St Stephen's Hall. Also in St Stephen's (built on the site where the House of Commons met in the 17th to 19th centuries) are statues of Charles James Fox - a supporter of the American Revolution; and Lord Somers - who presided over the drafting of the Bill of Rights. In the Lower Waiting Room (beyond Central Lobby close to the Members Dining Room) there are statues of John Bright - the campaigner against the Corn Laws; Keir Hardie; Oliver Cromwell and the founder of the National Health Service (actually his bust has been removed for restoration), Nye Bevan.

Wednesday, 21 October 2009

Speaker discusses Commons Practices

Constitutional Reform & Governance Bill

A bill which will put the Civil Service on a statutory basis; deals with Treaty ratification; ends by-elections for hereditary Peers (which would end the hereditary peerage in the Lords - over a very long period of time (when the last 'elected hereditary' dies)); allows for removal, resignation; suspension and expulsion from the House of Lords; reforms the law on protests around Parliament - and other matters is now before the House of Commons.

read the Bill
read the House of Commons Library Research Paper

Tuesday, 20 October 2009

Super-injunctions Debate

Westminster Hall
Wednesday 21st October
2.30 pm - 4.00 pm

Effects of English libel law on the reporting of parliamentary proceedings.

Issues arising from last weeks row about attempts to gag Parliament.

Guardian article on how super-injunctions are used to gag investigative journalism here.
Roy Greenslade article here.
A view from the States (The Nation) here.

Assisted Suicide

Lord Warner is due to ask Her Majesty’s Government what response they will make to the House of Lords judgment of 30 July in the case of R (on the application of Purdy) v Director of Public Prosecutions and to the subsequent action by the Director of Public Prosecutions.

The full judgment can be read here.

The details of the Consultation process announced by the DPP are available on the CPS website

Monday, 19 October 2009

What's going on at Westminster?

The House of Commons Library has recently published a Research Paper which is a goldmine of statistics about the work carried out at Westminster. The number of Acts of Parliament and Statutory Instruments passed each year from 1950 to date is set out in Table One. Parliament certainly has a higher quantity of output, though the number of Acts passed has decreased. (though to be fair, 720 pages of Acts were the output in 1950 - in 2006 it was 4,609!). There are also historic tables of the numbers of divisions (Table 6); Parliamentary Questions (Table 7) and EDMs (Table 8)

Other tables set out information about the ages, sex, occupations and ethnicity of MPs. The Lords are not forgotten - though there are fewer Peers today. In 1968-69 there were 1,064. By 1998-99 there were 1.325. At the end of the last session there were 'only' 744.

For those who (wrongly) imagine that the House of Lords is an idle place, The graph on p47 shows the steady rise in the average daily attendance. The steep increase in the number of instances per Parliament where the House of Lords has insisted on its amendments to a bill is shown in Table 35.

The costs of Parliament are set out on pages 51-63.

There is information about the way Parliament communicates with the public - the data though has not yet caught up with the explosion in "tweeting".

Some useful data on international comparisons is reproduced. There is 1 MP per 94,000 people in the UK - wheras the House of Representatives has 1 Congressman for 696,000 people. An MP is paid £60,675 while a Congressman takes home the equivalent of £101,975.

Sunday, 18 October 2009

The Center on Congress at Indiana University

Lee Hamilton was a much respected Congressman from Indiana - who continues to play an important role in public affairs. He was vice-chairman of the 9/11 Commission and serves on the Homeland Security Advisory Council which is part of the Executive Office of the President. He is also the Director of the Woodrow Wilson International Center for Scholars.

With the then President of Indiana University, Dr Myles Brand - he helped established the Center on Congress at Indiana University. Its central mission is to help improve the public's understanding of Congress and to improve civic engagement, especially among our young people, as a way to strengthen our basic institutions of government.

There are some superb resources available through the Center's website. I have been particularly impressed by their "E-Learning Activities" There are also some excellent videos. Lee Hamilton also writes a useful column about Congress.

The website's address is http://congress.indiana.edu/. The Center's brochure can be downloaded from here.

Saturday, 17 October 2009

Summertime

One of my favourite pieces of music is "Summertime" from Gershwin's 'Porgy & Bess'. Here are a few classic performances



Billie Holiday



Ella Fitzgerald



Miles Davis



Sidney Bechet

Friday, 16 October 2009

Why Procedure Matters

The Rules and procedures of legislative bodies seem a bore to most people - even many legislators themselves. However the canny legislator (and staffer; and campaigner) takes time to learn the rules. Why? - a few choice quotes -

Representative Bill Steiger (A Congressional Reformer) “procedure is substance.”

House Republican Leader Bob Michel, “Procedure hasn’t simply become more important than substance—it has, through some strange alchemy, become the substance of our deliberations. Who rules House procedures, rules the House—and to a great degree, rules the kind and scope of political debate in this country.”

Dean of the House, Democratic Congressman John Dingell of Michigan “"I'll let you write the substance . . . and you let me write the procedure, and I'll screw you every time."
(Hearings on H.R. 2327 Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm. on the Judiciary, 98 Cong., 1st Sess. 312 (1983)).

...and it can be quite interesting too!

Thursday, 15 October 2009

Defence of the Realm

On Tuesday evening I walked over to Chatham House where Professor Christopher Andrews gave an entertaining talk with the title of this post. He had some interesting things to say - including the view he expressed that sometimes it was the politicians who were more obsessed with "subversives" than MI5 itself. He also pointed out that when Harold Wilson became Prime Minister in 1974 he was worried that the Labour Government might by hit by its own "Profumo Affair" - something which had destabalised the Tories and let him into 10 Downing Street. He made George Wigg (the Labour MP who had managed to use procedure to place the Profumo Affair on the record in Parliament and led the pursuit of Profumo which ultimately resulted in the latter's resignation.) his own personal 'National Security Adviser'. Wigg fed him with gossip and was the link to MI5 & MI6. Professor Andrews did not seem impressed with Wigg's contribution.

The talk coincided with the recent publication of Professor Andrew's latest book, the MI5 authorised history of that organisation. I didn't buy the book - as I won't have chance it read it at the moment - but, based on the respect I have for Professor Andrew's previous work - and the presentation he gave - I will be buying it soon - and reading it!

One message was very clear - the need to learn from history. He put intelligence failures down to what he described as "Historical Attention Deficit Syndrome".

The Royal Prerogative

The Ministry of Justice has just published a list of royal prerogative powers

Ministerial prerogative powers

Government and the Civil Service

Powers concerning the machinery of Government including the power to set up a department or a non-departmental public body
  • Powers concerning the civil service, including the power to appoint and regulate most civil servants
  • Power to prohibit civil servants and certain other crown servants from issuing election addresses or announcing themselves, or being announced as, a Parliamentary candidate or a Prospective Parliamentary candidate
  • Power to set nationality rules for ‘non-aliens’ – British, Irish and Commonwealth citizens – concerning eligibility for employment in the civil service
  • Power to require security vetting of contractors working alongside civil servants on sensitive projects
  • Powers concerning the Office of the Civil Service Commissioners, the Security Vetting Appeals Panel, the Office of the Commissioner for Public Appointments, the Advisory Committee on Business, the Civil Service Appeal Board and the House of Lords Appointments Commission, including the power to establish those bodies, to appoint members of those bodies and the powers of those bodies

Justice system and law and order

  • Powers to appoint Queen’s Counsel
  • The power to make provisional and full order extradition requests to countries not covered by Part 1 of the Extradition Act 2003
  • The prerogative of Mercy
  • Power to keep the peace

Powers relating to foreign affairs

  • Power to send ambassadors abroad and receive and accredit ambassadors from foreign states
  • Recognition of states
  • Governance of British Overseas Territories
  • Power to make and ratify treaties
  • Power to conduct diplomacy
  • Power to acquire and cede territory
  • Power to issue, refuse or withdraw passport facilities
  • Responsibility for the Channel Islands and Isle of Man
  • Granting diplomatic protection to British citizens abroad

Powers relating to armed forces, war and times of emergency

  • Right to make war or peace or institute hostilities falling short of war
  • Deployment and use of armed forces overseas
  • Maintenance of the Royal Navy
  • Use of the armed forces within the UK to maintain the peace in support of the police or otherwise in support of civilian authorities (eg to maintain essential services during a strike)
  • The government and command of the armed forces is vested in Her Majesty
    Control, organisation and disposition of armed forces
  • Requisition of British ships in times of urgent national necessity
  • Commissioning of officers in all three armed forces
  • Armed forces pay
  • Certain armed forces pensions which are now closed to new members
  • War pensions for death or disablement due to service before 6 April 2005 (section 12 of the Social Security (Miscellaneous Provisions) Act 1977 provides that the prerogative may be exercised by Order in Council
  • Crown’s right to claim Prize (enemy ships or goods captured at sea)
  • Regulation of trade with the enemy
  • Crown’s right of angary, in time of war, to appropriate the property of a neutral which is within the realm, where necessity requires
  • Powers in the event of a grave national emergency, including those to enter upon, take and destroy private property


Miscellaneous

  • Power to establish corporations by Royal Charter and to amend existing Charters (for example that of the British Broadcasting Corporation, last amended in July 2006)
  • The right of the Crown to ownership of treasure trove (replaced for finds made on or after 24 September 1997 by a statutory scheme for treasure under the Treasure Act 1996)
  • Power to hold public inquiries (where not covered by the Inquiries Act)
  • Controller of Her Majesty’s Stationery Office as Queen’s Printer:
  • the power to appoint the Controller
  • the power to hold and exercise all rights and privileges in connection with prerogative copyright
  • Sole right of printing or licensing the printing of the Authorised Version of the Bible, the Book of Common Prayer, state papers and Acts of Parliament
  • Power to issue certificates of eligibility in respect of prospective inter-country adopters (in non-Hague Convention cases)
  • Powers connected with prepaid postage stamps
  • Powers concerning the visitorial function of the Crown

Other prerogative powers

Constitutional/personal prerogatives of the Monarch

  • Appointment and removal of Ministers
  • Appointment of Prime Minister
  • Power to dismiss government
  • Power to summon, prorogue and dissolve Parliament
  • Assent to legislation
  • The appointment of privy counsellors
  • Granting of honours, decorations, arms and regulating matters of precedence.
  • Queen’s honours – Order of the Garter, Order of the Thistle, Royal Victorian Order and the Order of Merit
  • A power to appoint judges in a residual category of posts which are not statutory and other holders of public office where that office is non-statutory
  • A power to legislate under the prerogative by Order in Council or by letters patent in a few residual areas, such as Orders in Council for British Overseas Territories
  • Grant of special leave to appeal from certain non-UK courts to the Privy Council
  • May require the personal services of subjects in case of imminent danger
  • Grant of civic honours and civic dignities
  • Grant of approval for certain uses of Royal names and titles

Powers exercised by the Attorney General

  • Functions in relation to charities
  • Functions in relation to criminal proceedings – including the power to enter a nolle prosequi
  • Functions in relation to civil proceedings – including the ability to institute legal proceedings to protect a public right at the relation of a person who would otherwise lack standing (relator proceedings)

Archaic prerogative powers
( It is unclear whether some of these prerogative powers continue to exist. )

  • Guardianship of infants and those suffering certain mental disorders
  • Right to bona vacantia
  • Right to sturgeon, (wild and unmarked) swans and whales as casual revenue
  • Right to wreck as casual revenue
  • Right to construct and supervise harbours
  • By prerogative right the Crown is prima facie the owner of all land covered by the narrow seas adjoining the coast, or by arms of the sea or public navigable rivers, and also of the foreshore, or land between high and low water mark
  • Right to waifs & strays
  • Right to impress men into the Royal Navy
  • Right to mint coinage
  • Right to mine precious metals (Royal Mines); also to dig for saltpetre
  • Grant of franchises, e.g. for markets, ferries and fisheries; pontage & murage.
  • Restraining a person from leaving the realm when the interests of state demand it by means of the writ ne exeat regno
  • The power of the Crown in time of war to intern, expel or otherwise control an enemy alien

Legal Prerogatives of the Crown

The legal prerogatives of the Crown are powers that the Monarch possesses as an embodiment of the Crown. Sometimes described as Crown "privileges or immunities", these prerogatives have been significantly affected by statute - in particular, the Crown Proceedings Act 1947.

  • Crown is not bound by statute save by express words or necessary implication
  • Crown immunities in litigation, including that the Crown is not directly subject to the contempt jurisdiction and the Sovereign has personal immunity from prosecution or being sued for a wrongful act
  • Tax not payable on income received by the Sovereign
  • Crown is a preferred creditor in a debtor’s insolvency
  • Time does not run against the Crown (ie no prescriptive rights run)
  • Priority of property rights of the Crown in certain circumstances

The whole report on the Royal Prerogative is available here.

Freedom of Information

Lord Bach was asked about any plans the Government has to amend the Freedom of Information Act to allow a person who was the subject of a FOIA request to know who had made the request. There have been concerns that some people have been "stalked" by malicious individuals.

In response Lord Bach highlighted the little know right of subjects under s7 of the Data Protection Act to know who is asking questions about them by making a "Subject Access Request". This piece of information was swelcomed by people who had been victims of such "stalking" themselves.

The question can be viewed at (about 1 minute 20 seconds into the broadcast) http://www.parliamentlive.tv/Main/Player.aspx?meetingId=4715&wfs=true. (see also 3:20 minutes into the broadcast)

Remembering Radical History

I found this walk on the internet. I may even follow it soon.

http://www.timeout.com/media/radical_london_walk.pdf

Further Update on EDM 1935

The current List of signatories is -

Banks, Gordon
Borrow, David S
Bottomley, Peter
Breed, Colin
Burns, Simon
Burt, Lorely
Campbell, Ronnie
Caton, Martin
Cook, Frank
Cousins, Jim
Davey, Edward
Dean, Janet
Dismore, Andrew
Dodds, Nigel
Drew, David
Evans, Nigel
Foster, Don
George, Andrew
Gray, James
Hall, Patrick
Hancock, Mike
Hepburn, Stephen
Holmes, Paul
Hopkins, Kelvin
Howells, Kim
Hoyle, Lindsay
Hughes, Simon
Hunter, Mark
Iddon, Brian
Illsley, Eric
Jackson, Glenda
Jenkins, Brian
Jones, Lynne
Lancaster, Mark
Leech, John
McCafferty, Chris
McDonnell, John
Oaten, Mark
Opik, Lembit
Pugh, John
Robinson, Iris
Russell, Bob
Simpson, Alan
Smith, Geraldine
Soames, Nicholas
Stringer, Graham
Taylor, David
Truswell, Paul
Vis, Rudi
Wareing, Robert N
Webb, Steve
Williams, Betty
Williams, Stephen
Willis, Phil
Winterton, Ann
Wyatt, Derek

If your MP hasn't signed (you can find your MP by postcode at http://findyourmp.parliament.uk/) - please email (list of MPs & their emails) or "tweet" them (lists of MPs on twitter) - and ask them to sign EDM 1935.(NOTE: Ministers; The Speaker & his Deputies; & PPSs cannot sign EDMs - and opposition frontbench spokepersons will only normally sign only on exceptional occasions - please respect their refusal if this is the reason!)

Debate on UK Defence Policy

Today the House of Commons is due to have a debate on "Defence Policy". This is due to follow the Statement on Business by the Leader of the House and subsequent questions.

The House of Commons regularly has debates on Defence issues - as well as Defence Questions (normally on Mondays - at 4 week intervals - next due on 2nd November). It has its own select committee - the House of Commons Defence Committee (HCDC). which is charged with examining the expenditure, administration, and policy of the Ministry of Defence and its associated public bodies.

The Ministry of Defence's website can be found here.

Wednesday, 14 October 2009

Whose turn to speak?

On Monday the House of Lords returned from its summer break. The first question highlighted a problem for the House - it doesn't have anyone to decide who can speak. "The House is self-regulating: The Lord Speaker has no power to rule on matters of order. In practice this means that the preservation of order and the maintenance of the rules of debate are the responsibility of the House itself, that is, of all the members who are present...." (Companion to the Standing Orders 4.01)

Can that work? Well like so many things in the British Constitution, it shouldn't work - but it does. Often two or more Peers will rise to ask a supplementary question. It never comes to blows. There are unwritten rules about the 'turn' each party has - and occasionally the Leader of the House, her Deputy or a government whip will assist the House by suggesting the next questioner. Of course this advice does not need to be heeded - but a Peer who presses on is usually drowned out by obvious diapproval of their colleagues.

On Monday this exchange occured -

Lord Thomas of Gresford: My Lords, would the Government—

Lord Trimble: My Lords, are there not lessons to be learnt—

Lord Thomas of Gresford: My Lords, Front Bench, please.

Lord Hunt of Kings Heath: My Lords, we do not accept the precedence of Front Bench, but it is certainly the turn of the Liberal Democrats.

Both Lord Thomas (Liberal Democrat) and Lord Trimble (Conservative) sought to put a supplementary - for a couple of moments both were trying to get in, and neither would give way. The Deputy Leader "assisted" the House. The turns of the parties was recognised (and Lord Trimble did not persist), but Lord Hunt was adamant that there is no basis for any claim that front benchers have the right to speak before backbenchers.

Simon Hoggart on Lord Martin's introduction

In Today's Guardian Simon Hoggart wrote his parliamentary sketch. First he described the expenses row in the Commons - but he was in the Press Gallery for the start of Lord's business (I was a yard or so away so I can confirm that this is a first hand account) - he wrote:-

Yesterday, in one of the many magnificently ironic moments that have marked this gruesome affair, Michael Martin, the former Speaker who presided over the whole farrago and did his utmost to stop it coming under the public gaze, was promoted to glory, or at least to the House of Lords.

Normally, this is routine for any Speaker. But Mr Martin was the first Speaker to be forced out of office for more than 300 years. And the House of Lords Appointments Commission, which looks at all nominations for peerages, told Number 10 that his arrival might damage the House's reputation.

No matter. Gordon Brown waved the objections aside, like an unwanted bread roll. It's assumed that the peerage was part of the tempting package which persuaded Mr Martin to quit.

You might have thought, to misquote Groucho Marx, that he would not want to join any club that didn't want to have him as a member. But Mr Martin is clearly plated with the sheet metal he used to work, so yesterday afternoon we trooped in to see him, clad in scarlet and ermine robes, shuffling towards the table of the House to hear the ancient, time-encrusted words: "Elizabeth II, by the Grace of God of the United Kingdom … [the clerk somehow manages to pronounce the capital letters, which are used for every mention of Her Maj, rather like Jesus, or God] … know Ye that We of Our especial grace, certain knowledge and mere motion … do advance, create and prefer Our trusty and well-beloved Michael John Martin …"

On and on he went. "And also that he may enjoy all the rights, privileges, pre-eminences, immunities and advantages to the degree of Baron …

Now he was talking. Right, privileges, pre-eminences, immunities and advantages! That's the kind of language Michael Martin understands.

Perhaps it was his excitement at the prospect of all those immunities and advantages that caused him to forget to sign the register, or what was possibly the rental agreement for his clobber.

Meanwhile, Helene Hayman, the Lord Speaker who sits on the Woolsack, maintained a distant glare. This was not a facial expression that cried "welcome!" She seemed an unhappy bunny, right up to the moment when the new Baron Martin walked past her and she managed a smile that might have lasted all of two seconds.

There was a sort of cheer from some of the lords and ladies, but it was polite and formulaic, quieter than any cheer I can recall for a new peer.

Update on Bletchley Park EDM

The latest additions to EDM 1935

Burns, Simon
Caton, Martin
Cook, Frank
Foster, Don
Gray, James
Hall, Patrick
Hancock, Mike
Holmes, Paul
Hunter, Mark
Jackson, Glenda
Leech, John
Oaten, Mark
Pugh, John
Smith, Geraldine
Soames, Nicholas
Taylor, David
Wareing, Robert N
Wyatt, Derek

For further details of the EDM & its signatories - and what YOU can do is available here

Strangers Bar

I came across this in a 2002 piece from the Daily Telegraph

"The Strangers Bar, overlooking the House of Commons terrace, which in turn overlooks the Thames, is a most convivial place. It is so called because it is where MPs can invite guests. The wooden panelling and green carpet are in keeping with Pugin's original design, although the beer mats pinned above the oak bar are probably not.

At six o'clock on a Monday evening it is crowded with northern MPs in grey suits (the female versions fitting marginally better than their male counterparts). The men are drinking pints from "handles" - although the Sunderland MP Stephen Hepburn is looking more like a 1980s yuppie as he swigs lager from the bottle. The women are fuelling themselves with cheap House wine. It could be a Saturday night in any suburban saloon bar in any industrial town north of the Watford Gap - except that the staff are ruder."

The second paragraph is a bit unfair - particularly on the very friendly and helpful bar staff. Only MPs can buy drinks (a rule I approve of!!!). According to another article the bar has moved from its original place where the cafeteria is now. There is direct access to the Terrace - often used in the summer months. The May 2009 price list is available here.

Tuesday, 13 October 2009

John Wilkes

After writing the last post I thought it would be appropriate to find the Statue of John Wilkes in the Palace - but sadly, I have it on good authority that there isn't one. There is a painting in the Members Dining Room - but surely he should be better honoured!

Gags

An extraordinary row has gripped Westminster and the online community. This morning the Guardian reported

The Guardian has been prevented from reporting parliamentary proceedings on legal grounds which appear to call into question privileges guaranteeing free speech established under the 1688 Bill of Rights.

Today's published Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.

The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

The only fact the Guardian can report is that the case involves the London solicitors Carter-Ruck, who specialise in suing the media for clients, who include individuals or global corporations. The Guardian has vowed urgently to go to court to overturn the gag on its reporting. The editor, Alan Rusbridger, said: "The media laws in this country increasingly place newspapers in a kafkaesque world in which we cannot tell the public anything about information which is being suppressed, nor the proceedings which suppress it. It is doubly menacing when those restraints include the reporting of parliament itself."

The media lawyer Geoffrey Robertson QC said Lord Denning ruled in the 1970s that "whatever comments are made in parliament" can be reported in newspapers without fear of contempt. He said: "Four rebel MPs asked questions giving the identity of 'Colonel B', granted anonymity by a judge on grounds of 'national security'. The DPP threatened the press might be prosecuted for contempt, but most published."

The right to report parliament was the subject of many struggles in the 18th century, with the MP and journalist John Wilkes fighting every authority – up to the king – over the right to keep the Public informed. After Wilkes's battle, wrote the historian Robert Hargreaves, "it gradually became accepted that the public had a constitutional right to know what their elected representatives were up to".

The question can be found in today's Order Paper (Question Book) and is Question 61. I hope we will see today's parliamentarians as ready to stand up for freedom of speech as was the aforementioned John Wilkes.

Bletchley Park EDM

An Early Day Motion is circulating at Westminster to provide operational funding for this excellent & historic museum.




The EDM (No. 1935) has currently been signed by the following.

Bottomley, Peter
Breed, Colin

Cousins, Jim
Davey, Edward
Dismore, Andrew
Dodds, Nigel
Drew, David
Evans, Nigel
George, Andrew
Hopkins, Kelvin
Hoyle, Lindsay
Hughes, Simon
Iddon, Brian
Illsley, Eric
Jenkins, Brian
Jones, Lynn

Lancaster, Mark
McCafferty, Chris
McDonnell, John
Robinson, Iris
Russell, Bob
Stringer, Graham

Webb, Steve
Williams, Betty
Williams, Stephen

Willis, Phil
Winterton, Ann
(A further 14 MPs have signed the EDM but due to a computer problem, which should be resolved in the next 24 hours, these names are not yet on the EDM database at http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=39161&SESSION=899)

and says -

"That this House recognises the signficance of Bletchley Park, historic site of secret British code-breaking activities during the Second World War and birthplace of the modern computer; acknowledges that the use of the intelligence gained at Bletchley Park and subsequent related actions of the Allies is said to have shortened the Second World War by two years, saving countless lives; and calls on the Government to provide operational funding whilst the museum is developed for long-term sustainability, securing the site for future generations to visit, appreciate and understand."

If your MP hasn't signed (you can find your MP by postcode at http://findyourmp.parliament.uk/) - please email (list of MPs & their emails) or "tweet" them (lists of MPs on twitter) - and ask them to sign EDM 1935.

(NOTE: Ministers; The Speaker & his Deputies; & PPSs cannot sign EDMs - and opposition frontbench spokepersons will only normally sign only on exceptional occasions - please respect their refusal if this is the reason!)

The Rule of Law

The "Rule of Law" is a principle central to the British and American systems. The Magna Carta is often seen as the statute which established the principle in our joint tradition because it contains the principle that the King, like all his subjects, is subject to the rule of law

A.V.Dicey summarised the rule of law (in the UK) under three heads.

Primarily...No man could be punished or lawfully interfered with by the authorities except for breaches of law. In other words, all government actions must be authorised by law.

Secondarily...No man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land.

Finally...There is no need for a bill of rights because the general principle of the constitution are the result of judicial decisions determining the rights of the private person. (this last point of course is not shared with the American tradition - and since the Human Rights Act 1998, is now rejected here)
{The memorial at Runnymede, pictured above, was built by the American Bar Association - which intends to meet there in 2015 - the 800th anniversary of King John's signing of the Magna Carta at that place}

Monday, 12 October 2009

Today's and future Business in the House of Lords

If at any time you want to see what is on go to http://www.publications.parliament.uk/pa/ld/ldordpap.htm#order

The role of lay people in the legal system


There is an argument for the completely professional judiciary. In many civil law systems, should you come before a court or tribunal, the person presiding over the case will be a fully trained and qualified judge. In both England and the USA non-legally qualified people continue to play a key role.

The right to trial by jury is entrenched in the VIth [Criminal cases] and VIIth [Civil cases] amendments to the US Constitution. In England (as entrenchment is incompatible with the doctrine of the sovereignty of Parliament), it lacks that protection - and a number of attempts have been made to reduce the availability of jury trials.

The argument for jury trials can be summarised as follows - Jury trial "is a fundamental right and an essential safeguard for the rule of law. Juries provide a barrier against oppressive and politically motivated prosecutions. They enhance the transparency of the court process and promote public confidence in the criminal justice system." (per - Law Society)

A more detailed argument can be found in the following article

In England lay magistrates continue to play a key role in the legal system. They deal with about 91% of criminal cases [95% of cases are finally dealt with in Magistrates Courts, but the 4% difference reflects the role played by Stipendiary [legally qualified Magistrates who sit alone, usually in the larger urban areas] Magistrates] - only the most serious are heard by a Judge and jury in the Crown Court. A detailed discussion of the value of magistrates can be read here.

Direct Gov has an article about becoming a magistrate and the work it involves.

Sunday, 11 October 2009

Minority Rights

I have just completed reading one of the most stimulating books I've come across on procedural politics in Congress. Written by Sarah Binder of the Brookings Institute and George Washington University, it is called "Minority Rights: Majority Rule".

The book describes the history of creation and suppression of minority rights, mainly in the House of Representatives. That's a fascinating story in itself. She also considers three main explanations given for the creation and suppression of minority rights - concluding from her research that the alignment of partisan preferences shapes procedural outcomes - rather than the traditional views that increased workload or increased party competition cause the changes. She finds in favour of three hypotheses -

Partisan needs hypothesis (suppression): The higher the level of minority obstructionism, the more likely the majority party will suppress minority rights.

Partisan capacity hypothesis (suppression): The stronger the majority party relative to the minority party, the more likely the majority party will suppress minority rights.

Partisan capacity hypothesis (creation): The weaker the majority party relative to the minority party, the more likely a cross-party coalition will create new minority rights.

The critical influence of 'inherited rules' on the development (or not) of rights is also considered. Sarah Binder comments "At any given time in a chamber's history, a set of inherited rules marks the contours of a legislative body...First, the set of prevailing rules affects how readily a majority party can assemble a winning coalition to secure either policy or procedural rules...Second, and relatedly, inherited rules alter the costs incurred by coalitions seeking to change the rules."

Further she considers why the Senate evolved in such a different way to the House. The early rules and practices influenced the development of a body which places greater emphasis on the rights of individual Senators. She again argues that the partisan goals of groups of Senators lie behind the developments.

The book is available from Cambridge University Press.

Saturday, 10 October 2009

Observing Congress



Of course the best way would be to sit in the public galleries - and only move out when requested to leave. But then C-SPAN came along. Still some disadvantages - the time difference for us in the UK is just one of them.

Now, it is possible to search the archives of C-SPAN and both watch the clip, and read the relevant portion of the Congressional Record.

Link to C-SPAN's Congressional Record

Friday, 9 October 2009

Privilege


Jefferson wrote in his Manual - which is one of the fundamental source materials for procedure in the House of Representatives -
"The privileges of the members of Parliament, from small and obscure beginnings, have been advancing for centuries, with a firm and never yielding pace. Claims seem to have been brought forward from time to time, and repeated, till some example of their admission enabled them to build law on that example. We can only therefore state the point of progression at which they now are. It is now acknowledged,

1. That they are at all times exempted from question elsewhere for any thing said in their own house; that during the time of privilege,
2. Neither a member himself, his wife, or his servants, (familiares sui) for any matter of their own, may be arrested, on mesne process, in any civil suit:
3. Nor be detained under execution, though levied before time of privilege:
4. Nor impleaded, cited, or subpoenaed in any court:
5. Nor summoned as a witness or juror:
6. Nor may their lands or goods be distrained:
7. Nor their persons assaulted, or characters traduced.

And the period of time covered by privilege, before and after the session, with the practice of short prorogations under the connivance of the crown, amounts in fact to a perpetual protection against the course of justice. In one instance, indeed, it has been relaxed by the 10. G. 3. c. 50, which permits judiciary proceedings to go on against them. That these privileges must be continually progressive, seems to result from their rejecting all definition of them; the doctrine being that "their dignity and independence are preserved by keeping their privileges indefinite;" and that "the maxims upon which they proceed, together with the method of proceeding, rest entirely in their own breast, and are not defined and ascertained by any particular stated laws." 1. Blackst. 163. 164.
It was probably from this view of the encroaching character of privilege, that the framers of our constitution, in their care to provide that the laws shall bind equally on all, and especially that those who make them shall not exempt themselves from their operation, have only privileged "Senators and Representatives" themselves from the single act of "arrest in all cases, except treason, felony and breach of the peace, during their attendance at the session of their respective Houses, and in going to and returning from the same, and from being questioned in any other place for any speech or debate in either House." Const. U.S. Art. 1. Sec. 6.
Under the general authority "to make all laws necessary and proper for carrying into execution the powers given them," Const. U.S. Art. 2. Sec. 8., they may provide by law the details which may be necessary for giving full effect to the enjoyment of this privilege. No such law being as yet made, it seems to stand at present on the following ground: 1. The act of arrest is void ab initio. 2. The member arrested may be discharged on motion. 1. Bl. 166. 2. Stra. 990, or by Habeas Corpus under the federal or state authority, as the case may be; or by a writ of privilege out of the Chancery, 2 Stra. 989, in those states which have adopted that part of the laws of England. Orders of the H. of Commons. 1550. February 20. 3. The arrest, being unlawful, is a trespass, for which the officer and others concerned are liable to action or indictment in the ordinary courts of justice, as in other cases of unauthorised arrest. 4. The court before which the process is returnable, is bound to act as in other cases of unauthorised proceeding, and liable also, as in other similar cases, to have their proceedings staid or corrected by the superior courts."
A Joint Committee of the House of Commons & House of Lords reported on Parliamentary Privilege in 1999. The full report is accessible here. The Executive Summary gives a useful overview of the subject -

Parliament makes the law and raises taxes. It is also the place where ministers are called to account by representatives of the whole nation for their decisions and their expenditure of public money. Grievances, great and small, can be aired, regardless of the power or wealth of those criticised.
In order to carry out these public duties without fear or favour, Parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims. These rights and immunities, rooted in this country's constitutional history, are known as parliamentary privilege.
Despite its ancient origins, parliamentary privilege must meet the current needs of Parliament, and must do so in a way acceptable today as fair and reasonable. The Joint Committee was set up by both Houses of Parliament to review the whole subject. The touchstone applied by the Joint Committee was that Parliament should be vigilant to retain necessary rights and immunities, and equally rigorous in discarding all others.
Freedom of speech is guaranteed by article 9 of the Bill of Rights 1689: `freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament'. It is the single most important parliamentary privilege. Article 9 affords legal immunity (`ought not to be questioned') to members for what they say or do in `proceedings in Parliament'. The immunity applies in `any court or place out of Parliament'.

This legal immunity is comprehensive and absolute. Article 9 should therefore be confined to activities justifying such a high degree of protection, and its boundaries should be clear.The scope of article 9 has been the subject of two recent developments in the courts. In 1993 the courts decided (in a case called Pepper v Hart) that when interpreting ambiguous statutes the courts may look at ministerial statements made in Parliament during the passage of the Bill through Parliament. The courts have also established a practice of examining ministerial statements made in Parliament in another circumstance, namely, when considering challenges by way of judicial review to the lawfulness of ministers' decisions. These are beneficial developments, but they should not lead to any general weakening of the prohibition contained in article 9.

Article 9 caused difficulty when a member was defamed outside Parliament regarding the manner in which he carried out his parliamentary duties. The truth of the defamatory allegations could not be decided in court when this would involve examining parliamentary proceedings. Unlike any other citizen, the member was unable to clear his name. Section 13 of the Defamation Act 1996 was passed to remedy this situation. This section enables a person to waive parliamentary privilege so far as he is concerned, for the purpose of defamation proceedings. Section 13 has been much criticised: it could be unworkable in some cases, it is anomalous in applying only to defamation proceedings, and it suffers from the flaw of undermining the basic principle that freedom of speech is the privilege of the House as a whole and not of the individual member.
The Joint Committee recommends that section 13 should be replaced with a new statutory provision enabling the House, and not any individual, to waive the privilege in court proceedings. Waiver would apply to all court proceedings, whether relating to defamation or any other matter, provided there is no question of the person who made the statement in Parliament being exposed in consequence to a risk of legal liability. This power of waiver would also resolve the difficulty currently confronting Parliament when Parliament itself becomes involved through its corporate officers in court proceedings relating to contractual disputes.
The traditional view of article 9 as a blanket prohibition on examination of parliamentary proceedings in court, should be confirmed, subject to specific and limited exceptions for court proceedings (1) so far as they relate to interpretation of a statute or subordinate legislation, or the judicial review of, or the consequences of, government decisions, (2) where there is no suggestion that anything forming part of the parliamentary proceedings was inspired by an improper motive or was untrue or misleading, and (3) when the House waives privilege.
The meaning of `proceedings in Parliament' and `place out of Parliament' should be clarified and defined. Article 9 protects activities that are recognisably part of the formal collegiate activities of Parliament. Constituency correspondence does not fall within this description and should not be brought within the protection of article 9. The registers of members' financial interests should form part of parliamentary proceedings, despite a recent court decision to the contrary.

Legislation should also confirm that the laws of Scotland and Northern Ireland are the same
as the law of England and Wales on this subject, and that the other rights and immunities of Parliament, its members and officers under the law of England and Wales are likewise applicable throughout the United Kingdom.

The Government is proposing to introduce modern criminal legislation on bribery and corruption. The Joint Committee investigated whether Parliament should continue to be self-regulating in this regard and, if not, various ways this legislation might be applied to members of Parliament. These included: (1) members being liable to criminal prosecution in the courts, (2) a system of part self-regulation, part criminal prosecution, with serious cases dealt with by the courts, and less serious ones by Parliament, (3) criminal prosecution of members being subject to approval by the House, and (4) criminal investigations or prosecutions being subject to parliamentary sifting.
The Joint Committee concluded that corruption, a serious and insidious offence, can only be dealt with effectively by using the police and the courts. Prosecution through the courts is the only credible remedy. It is also the only credible deterrent for any briber. This will involve only a minimal encroachment upon the territory safeguarded by article 9. The Joint Committee is confident there are very few instances of corruption involving members of Parliament. The occasions when a court will be called upon to question a parliamentary proceeding will be rare.

The proposed bribery legislation will expose members of Parliament and other public figures to a high risk of vexatious allegations or private prosecutions. Accordingly, prosecution under the new legislation should require the consent of the Attorney General or the Lord Advocate. In order to prevent abuse, freedom of speech is subject to self-regulation by Parliament. By the sub judice rule Parliament ensures that court proceedings are not prejudiced by discussion in Parliament. The Chair in the House of Commons has wide discretionary powers, and is rightly vigilant to enforce the rule and relax it only in exceptional circumstances. The rule in the two Houses should be harmonised and modified in certain minor respects. Formal restrictions should not be introduced in respect of statements or disclosures in Parliament which are made in breach of court `no publicity' orders or the official secrets legislation. An advisory guide should be produced by each House to assist members, especially new members, on the rules and conventions regarding the conduct of debate and the exercise of freedom of speech.

The Joint Committee considered a `right of reply' scheme for members of the public who feel they have been unfairly criticised or even defamed, but decided against it. Such a scheme would raise expectations it could not fulfil because it would not establish the truth or falsity of the criticism, no financial redress would be forthcoming, and a statement published in Hansard would not necessarily attract publicity matching the original comments.
Freedom of speech is one facet of the broader principle that what happens within Parliament is a matter for control by Parliament alone. This principle, of control by Parliament of its affairs free from interference by the courts, often called `exclusive cognisance', consists of a collection of related rights and immunities. Each House has the right to judge the lawfulness of its own proceedings. Each House has the right to institute inquiries and require the attendance of witnesses and the production of documents. The Joint Committee considers that witnesses should be informed in advance of the powers of the House and their own rights. The procedure committees of each House should review the convention that one House does not compel the attendance of a member of the other House before its committees. It is important that former ministers elevated to the House of Lords should attend select committees in the House of Commons to answer questions about their periods in office.

The right of each House to administer its internal affairs within its precincts should be confined to activities directly and closely related to proceedings in Parliament. Parliament should no longer be a statute-free zone in respect of Acts of Parliament relating to matters such as health and safety and data protection. In future, when Parliament is to be exempt, a reasoned case should be made out and debated as the legislation proceeds through parliament.

Parliament's disciplinary and penal powers are part of the control exercised by Parliament over parliamentary affairs. Conduct, whether of a member or non-member, which improperly interferes with the performance by either House of its functions, or the performance by members or officers of their duties, is a contempt of Parliament. Contempt should be statutorily defined. The penal sanctions make it particularly important that the scope of contempt should be clear and readily understood. Imprisonment as a penalty for contempt, not used for many years, should be abolished, save that each House should keep its power to detain for short periods persons who misconduct themselves in the House or its precincts. In lieu there should be power to fine.

Each House should retain its jurisdiction over its own members. The power of the House of Lords to suspend its members should be clarified and confirmed. The disciplinary procedures of both Houses should be revised to bring them into line with contemporary standards of fairness, including rights guaranteed by the European Convention of Human Rights. Any decision involving a penalty should remain the decision of the whole House, but the House should not have power to increase the penalty above that recommended in the report of the committee to the House.

Parliament's jurisdiction over contempts committed by non-members should be transferred to the courts. Parliament should retain a residual jurisdiction, including power to admonish in non-contentious cases. Wilful failure to attend committee proceedings or answer questions or produce documents should be made a criminal offence punishable by a fine of unlimited amount or up to three months' imprisonment. Fairness requires that this should also apply to members in the unlikely event of their committing such an offence.
Freedom from arrest in civil cases should be abolished (it has never applied in criminal cases). So should the obscure privilege of peerage. Members should cease to be exempt from subpoenas to attend court as witnesses, but a subpoena should not be issued against a member without the approval of a judge. Personal service of court documents on members within the precincts of Parliament should remain a contempt, but service by post should not be a contempt.

Papers published by order of either House have absolute privilege under the Parliamentary Papers Act 1840. The extent to which such orders are currently made by the House of Commons conflicts with the principle that absolute privilege should be confined to areas where it is needed. The House of Commons procedure committee should look into this matter. The Act of 1840, expressed in its impenetrable early Victorian style, should be replaced with a modern statute.

The recommendations of the Joint Committee requiring enactment by legislation should be included in a new Parliamentary Privileges Act. These recommendations will stand enactment by themselves, but if so enacted the result will be an uncomfortable mixture of modern statute and ancient learning. Overall statement as a code is the natural next step in a modern presentation of parliamentary privilege. This can be done without loss of flexibility for the future. A code would assist non-members as well as members, because it would enable the ordinary citizen to have access to the privileges of his member of Parliament. Parliament should now take steps to enact such a code.

Thursday, 8 October 2009

Favourite Places to eat

A few days ago I described Ben's Chili Bowl. Other places I like to eat in Washington include -

Tortilla Coast - a Tex-Mex restaurant and bar close to Capitol Hill. I had my first Margarita here.

Chevy's Fresh Mex - another Tex-Mex, this one is close to the Pentagon City metro (near Borders) 1201 S. Hayes Street. Great for celebrating finally submitting pieces of academic work!

Johnny Rocket's - either at Union Station or in Pentagon City.

Elsie's Magic Skillet Restaurant - 8166 Richmond Hwy, Alexandria, VA. Filling Southern food. (Love the breakfasts - but just can't get to like 'grits')

My favourite coffee bars are the Starbucks on Capitol Hill 237 Pennsylvania Ave SE (between S 2nd St & S Independence Ave) and the wonderful

St Elmo's Coffee Pub - the the Del Ray area of Alexandria. I'd take my laptop down there every day - if it wasn't 3,600 miles away!

Wednesday, 7 October 2009

Sources of the Constitution

The USA has, along with many countries, a single document defining the fundamental political principles, and establishing the structure, procedures, powers, and duties, of a government.



Of course the study of US Constitutional Law doesn't end with that single document. There is a large body of caselaw and authoritative commentary to consult - as well as other subsidiary constitutional rules (for example: the Rules of the House of Representatives).

In Britain we talk of an "unwritten constitution". In fact it is written - in many different places, but there is no single document. The main sources are

Statutes - examples include

  • Magna Carta (1215)
  • The Habeas Corpus Act (1679)
  • The Bill of Rights (1689)
  • The Act of Settlement (1701)
  • The Parliament Acts (1911 and 1941)
  • The Peerage Act (1963)
  • The European Communities Act (1972)
  • The Scotland Act (1998)
  • The Human Rights Act (1998)
  • The House of Lords Act (1999)
  • The Constitutional Reform Act (2005)

Caselaw - examples include

  • AG v Jonathan Cape Ltd - the Crossman Diaries case - unenforceability of conventions
  • BRB v Pickin - enrolled act rule
  • GCHQ - Judicial Review categories & Royal Prerogative
  • Factortame - impact of EU law on national statutes
  • Pepper v Hart - use of Hansard by Courts

Conventions - defined as "rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts" - examples include

  • The monarch always gives Royal Assent to bills passed by both Houses of Parliament
  • the Prime Minister must be a member of the House of Commons
  • the opinion of the law officers is confidential

Authoritative Works - by such writers as Sir William Blackstone, A V Dicey & Sir Ivor Jennings

Tuesday, 6 October 2009

How Rules Protect Rights


The Police and Criminal Evidence Act of 1984 sets out the rules relating to the arrest and detention of individuals. It sets out when a police officer can arrest (s24); what must be done when the arrest is being effected (s28); requires that the person must be taken to a police station as soon as possible (s30); and sets out the duties of the custody offer (ss38,39) - and reviews regular reviews of the decision to detain (s40).

When studying police powers it is worth constructing a table of rights with the following columns

When Right Applies
Description of Right/Power
Qualifications
Relevant section of PACE / Code
Type of Offence
Level of authority

These rights are important - not because of some vague idea of 'fairness', but to reduce the danger of unsafe convictions. There have been a number of miscarriages of justice in the past which would have been avoided if the procedural safeguards of PACE had been in place. A famous example is that of Timothy Evans. Ludovic Kennedy argues in his book "10 Rillington Place" that the interrogation of Evans was worded by the investigating officers and carried out over the course of late evening and early morning hours to the physical and emotional detriment of the accused, a man in a highly emotional state at the time. He was convicted and hanged for the murders which were actually committed by a serial killer.

Monday, 5 October 2009

The GCHQ Case


Just before Christmas 1983, Mrs Thatcher - who was hostile to Trade Unions - ordered that the terms and conditions of civil servants working at GCHQ be revised so as to exclude membership of any trade union other than a departmental staff association approved by the director of GCHQ.

The Unions, representing their members who faced a stark choice - quit their union - or give up their job - brought an action for Judicial Review. They were challenging the decision of the Minister (in this case the Prime Minister) to alter the terms of conditions of the staff at GCHQ. The power to make that decision arose not from statute, but was part of the Royal Prerogative.

Full judgment available here

The decision is important for a number of reasons -

  • It establishes that decisions taken under the Royal Prerogative can be subject to Judicial Review
  • It sets out the three headings of Judicial Review (Illegality; Irrationality & Procedural Impropriety) - [a fourth 'Breach of Convention Right' results from the Human Rights Act 1998]
  • National Security can override other rights

Sunday, 4 October 2009

Ben's Chili Bowl

On a recent visit to Washington DC I was taken to Ben's Chili Bowl. I want to go back (I loved the chili dog)! Even President Obama visits! (Other customers have included Duke Ellington, Miles Davis, Ella Fitzgerald, Martin Luther King and Bill Cosby).





More information can be found at the Ben's Chili Bowl Website