Divisions in the House of Commons

If you click on the link below you'll be taken to a clip of the House of Commons whilst a division takes place. In the photographs which follow you have the notes I made from Erskine May which go in order through the elements in that division.                   [CLICK ON THESE TO EXPAND]  

                                                                                                                                  I hope it will give you a deeper understanding of the process.

Just a few words of explanation. The clip starts with the Minister (Nadine Dorries) responding to an Opposition Day debate on health inequalities. Then the Opposition Chief Whip moves closure (an issue I will deal with in a later post). The key words are "the question now be put". which is agreed to unopposed.

Then the Speaker puts the question "that the original words stand part of the question." - these original words were - 

"That this House notes the publication of Health Equity in England: The Marmot Review 10 Years On; is concerned by its findings that since 2010 improvements to life expectancy have stalled for the first time in more than 100 years and declined for the poorest women in society, that the health gap between wealthy and deprived areas has grown, and that the amount of time people spend in poor health has increased across England; agrees with the review that these avoidable health inequalities have been exacerbated by cuts to public spending and can be reduced with the right policies; and calls on the Government to end austerity, invest in public health, implement the recommendations of the review, publish public health allocations for this April as a matter of urgency, and bring forward a world-leading health inequalities strategy to take action on the social determinants of health."

As you'll see the government backing members don't want that wording - so there is a division on the question "that the original words stand part of the question." which they will oppose.

Parliamentary Privilege

In these days when legislatures and their members are so often distrusted and under attack from the media; conspiracy theorists; and individual members of the public - the term "parliamentary privilege" seems a needless provocation. Why should MPs; Congressmen and other legislators have privileges that the people they represent don't have?

The answer can be found throughout history. Legislatures, and democracy itself, have come under attack from outside. Powerful interests have sought to intimidate Parliaments and parliamentarians. Parliamentary privilege is designed to ensure that legislators can do the job we expect of them.

 

Robert Maxwell - himself a former MP - demonstrated effectively how criticism of powerful individuals can be silenced. His strategy was anyone who dared criticise him - or point out what he was doing - faced the EXPENSIVE threat of being sued for defamation. Truth is a defence to such an action - but failing, even on a technicality can bankrupt the individual sued. Maxwell knew that individuals, and those who could uncover wrongdoing would be silenced by that fear. So it proved to be.

MPs can bring up allegations in Parliament - which, without 'parliamentary privilege', could lead them to face the reality of legal action. Legal aid isn't available - and a powerful individual like Maxwell can (and in his case, frequently did) hire the most expensive lawyers. If the defendant has costs awarded against them, they can be financially ruined. In any case to defend an action they need to get good legal representation. Defamation law can be a great good - allowing an individual to protect themselves from malicious and damaging assertions. But it can also be used to suppress free speech.

Some sections of the press can do a great job in uncovering wrongdoing - but a newspaper's editors need to take into account the danger to their publication of being sued. That's what Maxwell knew - and counted on. Parliamentarians receive complaints from their constituents about the actions of powerful individuals and companies. Sometimes it is necessary to use parliamentary privilege to expose and hold to account. The use of privilege is taken seriously [the Committee of Privileges in 1986-87 stated "We should use our freedom of speech...with the greatest care, particularly if we impute any motives or dishonourable conduct to those outside the House who have no right of reply."- and a legislator who abused the privilege could find themselves in deep trouble with the legislative body itself.

In 1955, Kim Philby was named in the House of Commons as a Soviet spy. The academic author of a textbook on Constitutional Law, Hilaire Barnett commented - "...which surely would not have been made without the protection of privilege."

In its disputes with the Stuart Monarchs - and in response to James I's assertion that Parliament's rights were derived only from the 'grace and permission of our ancestors [former Monarchs] and us [James I using the 'royal we'] - the House of Commons asserted in its Protestation of 18th December 1621 that

"every member of the House of Parliament hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conclusion the same"

Last week the Court of Appeal ruled on the issue last week - this report is from the BBC:

"John Bercow has said he is "absolutely delighted" that an attempt to sue a former Football Association boss for libel over comments he made to a parliamentary committee has failed. Lord Triesman made corruption allegations against some members of the sport's governing body, FIFA, in 2011. But the Court of Appeal ruled he could not be sued, as he had spoken while protected by "parliamentary privilege".

House of Commons Speaker Mr Bercow called this a "victory" for Parliament. Lord Triesman, a Labour peer and former minister, was part of the team involved in England's failed bid to host the World Cup in 2018. In 2011, when he appeared before MPs on the Commons Culture Committee, he made corruption allegations against some members of FIFA. Worwawi Makudi, former head of Thailand's football federation, attempted to sue Lord Triesman, former FA chairman, for defamation. Mr Makudi has denied any wrongdoing and Lord Triesman's allegations...

The Court of Appeal ruled last week that the comments to the committee had been covered by the legal protection of parliamentary privilege, established by the Bill of Rights in 1689, which bars MPs' and peers' proceedings from being "questioned in any court or place outside of parliament".

The chairman of the Culture Committee, Conservative MP John Whittingdale, said this was "a significant re-establishment of the rights of this House". Had the court decided otherwise, it could have had a "severe effect in terms of preventing us exposing truth", he added.

Mr Bercow, who wrote to the Court of Appeal last year expressing his views, said he had shared the "grave concern" of Mr Whittingdale and that he was "delighted... the court found as it did". He added: "That was a victory not just for Lord Triesman but for the precious principle of parliamentary privilege and a victory for Parliament itself." "

Erskine May, the handbook of Parliamentary procedure, defined privilege as being "...the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus, privilege, though part of the law of the land, is to a certain extent an exemption from the general law."

Taking Down the Words

Two earlier posts today show an example from earlier this week of "words being taken down".

CQ's "American Congressional Dictionary" defines "Taking Down the Words" as "Requiring that a member's remarks be read to the chamber so that the presiding officer may determine whether they are offensive or violate the rules of that House. When any member makes a point of order against such remarks and asks that the words be "taken down", the alleged violator must immediately sit down and await the Chair's decision".

If they do breach the rules, the words mayb be struck from the record - Wednesday's Congressional Record: Daily Digest records:- "During the course of debate, exception was taken to certain words used and a request was made to have words taken down. The words were reported to the Committee of the Whole and the Chair subsequently announced that the Committee would rise.

The Committee of the Whole rose and after review, the Chair ruled that the remarks constituted a personality directed toward an identifiable Member and announced that, without objection, said words would be stricken from the record. Subsequently, the Chair announced that the Committee of the Whole would resume its sitting."

On H1240 of Congressional Record - House Mr Frank's offending remarks have been replaced by "***", but the clerks reading of the words objected to are set out in full!!!

The Congressional Record App is available here to download to your iPad (and yes, I have it on mine!)

Full details of procedure can be found in the "Constitution; Jefferson's Manual and Rules of the House of Representatives" § 960, 961 [from commentary on the rules], 368, 369 [from Jefferson's Manual]

In the British Parliament such offending statements can also be the subject of points of order. [Remember that Jefferson was a great student of British parliamentary procedure - and many of the procedures in his manual are taken from the reports and books he read about the House of Commons].

In earlier editions of "Erskine May" there is a table listing "Unparliamentary Expressions" (p445 19th Edition, 1976) - which include "Blackguard...Cad...Coward...Criminal...Dog...Guttersnipe...Hooligan...Hypocrites...Jackass...Cheeky Young Pup...Rat....Swine". Standing Orders 43 & 44 sets out the punishment - (The Speaker) "shall order (the offender) to withdraw from the House during the remainder of that day's sitting...he may name such Member" and even suspend the offender.

Parliament and Congress

Back in 1972 Kenneth Bradshaw and David Pring brought out a classic book "Parliament and Congress". Now in the Twenty First Century the former Clerk of the House of Commons, William McKay [Editor of the current version of Erskine May] and the former Parliamentarian of the House of Representatives, Charles Johnson, [who was responsible for versions of 'House Practice' and 'House Manual'] have brought out a successor. They discussed the book on C-SPAN's Q & A.

Erskine May

In Parliament "Erskine May" is a book - though he was a real person. The book's full title is "Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament". It is the most authoritative book on parliamentary practice at Westminster. A short BBC film is available here.

The next edition (24th Edition) is due to be published on 31st March 2011. The pre-order price is £267. Details are available here.

Thomas Erskine May (later Lord Farnborough - though sadly this was the 2nd shortest peerage in British history - he died a week after his peerage was created) started work in the House of Commons aged 16 as an assistant librarian. After becoming a barrister he worked his way up as a parliamentary official until in 1861 he was appointed Clerk of the House of Commons. His "practical treatise" appeared in 1844.

In addition to his most famous work, he wrote a constitutional history (which can be downloaded as a free book here).

Are By-Elections Obligatory?

With the death of David Taylor, there is a vacancy in the constituency of Leicestershire North West. A General Election must be held by 3rd June 2010 (in five months time, or 160 days after the seat became vacant). Must a by-election be held before that date?

The answer is very clearly NO. Erskine May states that "the Speaker may be ordered by the House, upon a motion made by any Member, to issue a warrant to the Clerk of the Crown for a new writ for the place represented by the Member whose seat is thus vacated"

The normal practice is that the Motion for a new Writ is moved by the Chief Whip of the party that formerly held the seat. However there is no obligation for him (it would be Nick Brown) to do so, and he does not enjoy the exclusive right to move the writ. The writ can be moved "by any Member". However such a motion could be defeated. A Factsheet from the House of Commons states that "The motion cannot be moved again (for the same constituency) within the same session of Parliament if it is defeated." It is usual to stop an attempt to move the writ by amending the motion to leave out from “That” to the end of the Question and add
“this House do pass to the Orders of the Day.” Such an amended motion would allow a later motion to move the writ.

This was last done on July 21st last year, in an attempt by the SNP to force the issuing of a writ to fill the seat formerly held by Michael Martin - Text of Hansard.

Failing to move the writ is frequently criticised by members of the parties who currently do not hold the seat. There was a recommendation by the Speaker's Conference on Electoral Law in 1973 that the motion should normally be moved within three months of a vacancy arising.

Michael Rush wrote a very interesting article on "The Timing of By-Elections" in the September 1973 edition of of Parliamentary Affairs (Vol. 27, No. 1973sep pp44-66). It deals with many aspects of the selection of dates up to 1973. It also reveals the extreme delays.

373 days - Wrekin. J Baldwin-Webb was lost at sea on 17th September 1940: legally presumed dead in April 1941: further delay caused by a dispute in the local Conservative Association over a successor: by-election held on 26th September 1941.

252 days - Newcastle-under-Lyme. Stephen Swingler died 19th February 1969: By-election held on 30th October 1969.

The diagram on this post shows the North West Leicestershire constituency - within the county of Leicestershire.

Unparliamentary Language

Earlier editions of Erskine May (the authoritative handbook of Parliamentary Procedure - new editions are published every few years and written by the Clerk of the House of Commons) used to include a list of word ruled to be "unparliamentary". Sadly the current issue doesn't have such a list. Last week there was the following exchange -

Mr. Denis MacShane (Rotherham) (Lab): In the light of today's Daily Mirror report, and that of The Independent last week, about the buying of influence in the Caribbean and in Britain, can we have an early debate on that monster from the Caribbean deep, namely Lord Ashcroft, and his influence on politics- [ Interruption. ]

Mr. Speaker: Order. I say very gently to the right hon. Gentleman, who is an immensely experienced parliamentarian, that moderation in the use of language in the Chamber is always desirable. Whatever he thinks about the noble Lord, he should not call him a monster.

Mr. MacShane: If "monster" is now an unparliamentary term, Mr. Speaker, then we are limiting our vocabulary. May we have an early debate on this gentlemen, who forces right hon. Members on the Opposition Benches to dissemble on his tax status and uses gagging writs to intimidate newspapers. It is only in the House of Commons that this man's corroding and, I believe, corrupt influence on Caribbean and British politics can be debated and explored. [ Interruption. ]

Mr. Speaker: Order. The right hon. Gentleman has put his views very firmly on the record, but I urge him not to use the word "corrupt"-I do not like it.