As tensions rise in parliament over Brexit, the role of the Commons clerks has been much discussed. Here, former Clerk of the Committees Andrew Kennon offers a personal insight into how the clerks operate, within the context of  the recent decision of the Speaker on the 9 January Grieve amendment.

In his memoirs, Speaker George Thomas recalled a Member of Parliament in the 1970s who ‘had been told by the clerks that something he wanted to do was out of order because of a private ruling given by Mr Speaker Fitzroy years before the war’. When the Member asked to see the ruling, he was told it had been lost and that the only proof of it was a footnote in Erskine May, which is the official guide to parliamentary practice and procedure.

I recognise this clerkly approach from when I started in the House of Commons in 1977. This incident led Speaker Thomas to decide that all private rulings by the Speaker should be published. For a while, small green volumes of these rulings were produced, but the whole practice has now fallen into disuse.

There was nothing private or secret about Speaker Bercow’s decision on 9 January to select the Grieve amendment requiring the government to come back to the House within three days of any defeat on the Brexit deal (such a defeat came to pass on 15 January). The Speaker’s decision immediately resulted in an hour-long viva on parliamentary procedure in the form of points of order.

It remains to be seen how significant this decision will turn out to be in political terms. The procedural issue at stake is small. But it is when a government does not command a majority in the House that immense political pressure comes to bear on weak links in procedure; sometimes they break.

What is the procedural issue?

Standing Orders provide that certain business, some routine, some urgent, can be decided without debate – straight away or ‘forthwith’. This is for the general convenience of the House and is well established. It is not uncommon for motions arranging the business of the House to include a line saying that if they need to be amended later, this can be done without debate.

If someone wants to amend a motion which is to be taken without debate, there is no opportunity for the amendment to be explained or challenged on the floor of the House, nor any mechanism for taking a separate decision on that amendment. Consequently, a practice has developed of not allowing amendments to be tabled to such motions. It could be argued that any amendment is ineffective and therefore a waste of effort.

This practice is not to be found in Magna Carta or the Bill of Rights. Indeed, I cannot even find it in the current version of Erskine May – though it is bound now to feature in the next edition, which is due out shortly.

Why is it important?

So, the rule itself is not very important. Many procedural rules in the House exist to ensure some fairness between individual Members and between backbenchers, the opposition and the government. If some Members have been told in the past that they cannot table amendments to ‘forthwith’ motions, it is unfair on them if that practice is changed for another Member.

In the points of order on 9 January, Peter Bone MP said that he had gone to the Table Office and asked about tabling an amendment to the business motion and was told that could not be done. So, he thought it unfair that Dominic Grieve MP had been allowed to do exactly that thing. Iain Duncan Smith MP said that he had been told in the 1990s that he could not do that.

So the issue really is fairness between Members, not just at one time but over time and in different circumstances.

What happened?

This would have started with a clerk in the Table Office giving standard advice in good faith before it escalated into a decision by the Speaker to allow the amendment to be tabled and then selected for decision. There were thus two stages to the process. It is possible that an amendment to a forthwith motion has been put on the Order Paper in the past but I know of no precedent for one being selected.

What is a Business of the House motion?

A ‘Business of the House motion’ simply provides for a debate to be organised in a particular way – how long it will go on for and how matters will be concluded. This often involves some variation of the normal sitting times or enables votes to take place at certain times. Normally this would be uncontentious – ensuring sufficient time for debate and making sure that decisions can be reached at the end on the key amendments.

As such, Business of the House motions are the gentler cousin of the old draconian guillotine motions – now largely replaced by more consensual programme motions.

On controversial issues, any government tries to make the Business of the House motion as watertight as possible – to minimise the chances of opponents disrupting its business. The original Business motion for the Brexit debate was agreed on 4 December after a debate and a government defeat on another Grieve amendment. That original motion provided for any subsequent amendment to it only being possible if proposed by a Minister and taken without debate. This is normal practice for a programme motion.

Having delayed the vote from before Christmas, the government had to bring forward a change to that original motion setting out a revised timetable for concluding the Brexit debate. I guess that at some stage in the last week a government whip checked with the clerks that this revised motion could be taken without debate and was not vulnerable to any amendment. If so, in accordance with normal practice, the clerks would have given that assurance.

Clerkly advice

Clerkly advice to the Speaker is not like a legal opinion from a barrister to a client – or even as formal as the Law Officers’ advice to the Cabinet. Each day, several hours before the House meets, the Speaker, his deputies and the three clerks meet in the Speaker’s study to go through the business of the coming sitting. This is as much about sharing information as discussing procedure. If there is a procedural issue to be decided, the clerks’ advice is more likely to set out the pros and cons of various options, rather than to tell the Speaker he must or must not do something specific. By its nature these exchanges are oral and not usually committed to paper.

Once a decision has been taken, one of the clerks may well write some brief speaking notes for the Speaker to use in the Chamber if he needs them. Such a sheet or two of paper would not normally set out the full position and background. It is therefore quite possible that there is no document setting out whatever advice the Speaker was given by the clerks on this issue.

The Clerk of the House is ultimately responsible for advice to the Chair and Members but in many situations, it may be another clerk who is asked first. Different very experienced clerks may not have a single point of view on a highly complicated issue but will discuss this among themselves and accept the Clerk of the House’s final decision.

How is it known what advice the clerks gave?

Clerks would not disclose to anyone else the advice given to the Speaker. But if asked the same question by any other Member they would give the same advice to that Member. It is not uncommon for clerks to find themselves giving procedural advice in confidence to different Members who are seeking to achieve opposite results. It is therefore entirely possible that before the Speaker became involved, clerks had already advised other Members that no amendment would be possible to this motion.

Should the clerks’ advice be made public?

Even if the clerks’ advice was contained in a single complete document – which is unlikely – its disclosure would have several effects. It would undermine the candour of discussions between clerks and the Speaker and his deputies. Future advice would have to be written down at length, explaining the background for a wider readership.

There are many occasions when clerkly advice in general is made public – not least in giving evidence to the Procedure Committee when considering reform. But it is probably not best to do this in the middle of a political row.

There have been occasions when clerks’ advice has been published. The most recent example relates not to procedure but to non-disclosure agreements with former staff, when the Speaker asked the Clerk of the House to publish his note on the subject in May 2018. Madam Speaker Boothroyd recalled in her memoirs that she handed to both frontbenches a paper written for her by the then Clerk of the House on handling disorder in the Chamber during a tense political time in 1992.

No Speaker likes to appear to be the creature of the clerks. Mr Speaker Thomas said in his autobiography: ‘When I overruled the clerks, I never minded people knowing because I passionately believed that the Speaker should be able to take his own decisions’. Only on rare occasions does the current Speaker refer in the Chamber to the advice he has received from clerks – and that is only when his decision is unpopular and he wants to cite clerkly advice in his support.

When the rivets pop

The reality is that procedure rarely comes under pressure when a government has a working majority. When that is not the case, all Members will try, quite rightly, to make use of all the procedural tools available to further their causes. It is in these circumstances that apparently obscure practices may be challenged and put under unsustainable pressure. It would be impossible to establish whether Iain Duncan Smith was prevented from tabling amendments to Business of the House motions in the 1990s but that was a period when the government’s attempts to pass the Maastricht Treaty legislation faced strong opposition from rebels on its own side. Indeed the government was unable to get routine Business motions passed to enable later sittings.

Madam Speaker Boothroyd describes the situation thus:

‘The sceptics began to do everything they could to wreck [the] bill, regardless of the effect on the Government or their party – or the problems it raised for me… Normally the choice [of amendments to be selected] is straightforward. However, the Maastricht debate was anything but that. Its intensity on both sides meant that, if I chose an amendment that happened to unite the Tory rebels and the Opposition, the Government would be outvoted.’

In these circumstances, a procedural decision in 1993 by the Deputy Speaker, Michael Morris led to a motion of no confidence in him – which was defeated by 450 votes to 81. This is the most recent occasion when a motion of no confidence in an occupant of the Chair has been voted on.

In the late 1970s, when the Wilson and Callaghan governments barely had a working majority, political controversy focussed pressure on the narrow procedural issue of hybridity. Mr Speaker George Thomas had to make a ruling which was highly unpopular with the Labour government. Progress on the bill to nationalise the aircraft and shipbuilding industries was then delayed – on the grounds that that it did not deal fairly with every shipyard concerned. A government motion to reverse the Speaker’s decision was then approved by 304 votes to 303. ‘That night there was such tension as I had never experienced in the House before’, wrote Speaker Thomas. This shows that the Speaker has the last word on interpreting the rules of the House, subject to the House subsequently taking a different view, either at the insistence of the government or following an inquiry by a select committee.

A better way of organising business?

The government must now be regretting the opportunity missed in 2010 to put the planning of Commons business onto a firmer footing. The Wright Committee had recommended before the 2010 General Election that there should be a House Business Committee:

‘The task of assembling a draft agenda to put to the House should be undertaken by a unified House Business Committee, comprised of representatives of all parts of the House with a direct interest: backbenchers, Government and Opposition. The House Business Committee should be chaired by the Chairman of Ways and Means (the Deputy Speaker), who would have been elected by the House as a whole to that office with this function partly in mind. It would have a secretariat combining the House officers who support the Backbench Business Committee and the Government officials who currently support the usual channels.’

Many of the other Wright recommendations – on directly-elected select committee chairs and the backbench business committee – have been successfully implemented, but the incoming coalition government in 2010 opted not to create a House Business Committee, preferring to retain the traditional tools of control, which may now be slipping from its grasp.

About the author

Andrew Kennon was a clerk in the House of Commons for 39 years until 2017; he is a Trustee of the Constitution Society and an honorary professor at Kings College London.