175 not out: the new edition of Erskine May and eight years of constitutional change

sir_david_natzler.smiling.cropped.3840x1920.jpgIn March, Sir David Natzler retired as Clerk of the Commons after over 40 years in the House. Now, he is the co-editor of Erskine May, the 25th edition of which is the first new edition in eight years, and is freely available to the public: a significant change. Here, Sir David discusses some of the key changes to the text after what can only be described as an eventful eight years for the Commons. 

The years since the last edition of Erskine May in 2011 have been pretty turbulent by any standards. We have had three types – coalition, majority and minority – of government, two general elections, three national referendums and numerous constitutional statutes of real significance. So it was plainly time for a new edition of this timeless work, which is often referred to but rarely read.

The new Erskine May is exciting to me because, as its co-editor, I had the happy task of reading through the chapters as they emerged from the efforts of many of my former colleagues. We all had to ask ourselves: is this a clear and honest account of parliamentary procedure and practice, and if not, how far can we go in recasting it? It is not a new book; but nor is it merely a historical text with minor amendments for the benefit of a modern audience. New content has been added, but nothing has been asserted without due authority, and we also recognise that some assertions of the past are too precious to be excised. Paragraph 21.4 on the rule against reading of speeches is as good an example as any: the principle remains valued by some MPs but it would be idle to pretend that it is rigorously observed in practice. There has to be some wishful thinking.

Who is this edition of Erskine May for? Plainly for practitioners, meaning the occupants of the Chair (such as the Speaker and Deputy Speakers), those who advise them, MPs and officials. But it is not just for them. Recent controversy over decisions by the Speaker on procedural issues related to Brexit and threats of early or extended prorogation by some candidates for leadership of the Conservative Party have served to remind all of us that parliamentary procedures are not some sort of secret masonic ritual to be understood only by a priestly caste of clerks and a handful of others, but are as integral to a parliamentary democracy as electoral rules. And it is not just for Westminster: one of my great pleasures as Clerk was to receive emails from colleagues around the Commonwealth seeking elucidation of a procedural – and usually political – issue where their knowledge of what was said in Erskine May was far in advance of my own!

Fortunately this edition has been preceded by two very different works which help set it in context. In 2018 the Commons authorities published a Guide to Procedure which is intended to help those involved in its day to day work, set out in plain English. It is of course available online. And secondly, at the end of 2017 Hart Publishing produced a book of essays – edited by current Clerk of Committees Paul Evans, entitled Essays on the History of Parliamentary Procedure: In Honour of Thomas Erskine May, to mark the great man’s 200th birthday in 2015.

Erskine May is not a constitutional law textbook, but nor is it a readable book, as it was when it was first published. The time had therefore come for some good housekeeping: notably making it freely available electronically – and here is the link – and numbering the paragraphs. It is only a start, however; there will be regular updates both online and in hard copy, and the editors of the 26th edition will I am sure be able to make further improvements. It is still far too long, and future editors and sub-editors will always wrestle with keeping the right balance between the main text stating a bald truth and the use of footnotes, where sometimes contradictory precedents are subject to shallow burial.

The new edition is, as any reader would be entitled to expect, replete with references to parliamentary events since 2011. The Fixed-term Parliaments Act 2011 (FTPA) and the Recall of MPs Act 2015 are both discussed. In the latter case the references will need updating after a recall petition – the third in total – triggered a by-election in Brecon and Radnorshire, hot on the heels of the recall and replacement of the MP for Peterborough. It is remarkable that all three of the envisaged roads to a recall petition have now been used – suspension for 10 or more sitting days, an expenses system offence and a sentence of imprisonment. As for the FTPA, it was used for the first time in 2017, when the government sought and obtained an early general election. The statutory motion of no confidence created by that legislation was introduced for the first time as recently as January of this year, although it did not succeed in triggering a general election.

There are two innovations – on petitions and proxy voting – from the last five years which may be of interest to readers of the Unit’s blog. Chapter 24 on petitions was not in previous editions a happy story. What a change there has been! The colonisation by parliament of the government’s petitions website, and the introduction of procedures for debating heavily supported petitions in Westminster Hall, have been an astounding success, way beyond what the Wright Committee can have envisaged as likely in 2009 when it called for a proper e-petitions system (for discussion of the petitions process on our blog, see here).

And I confess to my personal pleasure at the introduction in January 2019 of proxy voting for MPs on parental leave, as reflected in paragraph 20.87. This was not an uncontested change but I am convinced that those who for understandable reasons were sceptical will feel that it is the right thing to have done: and for once without waiting for other progressive parliaments to do it first.

Sometimes events of political and constitutional importance glide by on the surface without disturbing the deep waters of parliamentary practice and procedure. Procedures for choosing or challenging party leaders, for example, on which we have all become experts in recent years, are not subject to parliamentary procedure or constitutional law. Similarly, the index contains no direct reference to the Scottish independence referendum of 2014. But paragraph 27.7 does refer to the outcome of the referendum as part of the background to a detailed account of the complex special procedures introduced in 2015 to give effect to the principle of ‘English votes for English laws’ (EVEL). These have generated a lot of heat and a lot of work for clerks and legal advisers, but not a lot of footnotes in Erskine May. The editors have not exposed all the minute details of the clockwork, but I am glad to say that room was found to refer to Daniel Gover and Michael Kenny’s academic analysis, Finding the Good in EVEL. The issue of EVEL has rather drifted away in the concentration on Brexit but it may re-emerge once the waters have subsided.

Similarly the EU referendum of June 2016 and the subsequent political fallout leave perhaps less of a trace in the 25th edition than might be expected. Chapter 32, on parliamentary oversight of matters related to the EU, remains very brief and inevitably much remains to be determined. The text was more or less locked down at the turn of the year, with a few minor updates in response to events leading to the postponement of ‘exit day’ in late March. If the UK does indeed exit on 31 October, the answers to a number of puzzles will become clearer, and the evaluation of how well parliament performed in a technical sense over the previous three and a half years will be feasible. The one thing I had desperately hoped was that at the end of this saga, whatever the outcome, the popular view would be that parliament had served the nation well. I fear that is very far from being the current view.

The way Erskine May is produced militates against emphasis of small but interesting changes. Some have no procedural echo: for example, some MPs felt – and perhaps still feel – that the abandonment of wigs and court dress, and perhaps also the termination of the printing of Acts on vellum, represented a breach of valued tradition which made the Commons special. But paragraph 30.75 on the printing of statutes refers only to the now current practice of using archival paper: Erskine May itself is printed on ordinary paper, and the index contains no mention of what clerks should wear in the Commons. But some of the Speaker’s minor relaxations of historic protocol in Chamber practice are recorded, such as the ending of the prohibition of reference to those in the public galleries, which had its origins in the antique practice of pretending that there was nobody attending proceedings. Paragraph 21.30 sets out the new regime, emphasising that such references should not be intimidating or intended to influence debate. And paragraph 21.36 records in necessarily bland terms the introduction of hand-held electronic devices, but cannot illustrate the impact of MPs appearing more intent on their phones than the contributions of their colleagues, and the practice of tweeting from the Chamber, which sometimes creates a parallel debate on social media. Paragraph 21.38 records the introduction of ‘business-like attire’ which no longer obliges men to wear ties, an issue which two years ago was deemed so important it appeared on the front page of at least one national newspaper. Paragraph 6.56 records the permissive regime for children under five to be taken into the division lobbies and in a footnote mentions that ‘a Member has taken an infant into the Chamber with the Speaker’s permission’.

Making Erskine May freely accessible to all and taking steps to make it more easily usable are modest steps to making parliament itself less forbidding and remote. Goodness knows there is still a mountain to climb in that respect. But I hope that this small step to increase transparency and accessibility will lead to a better understanding and appreciation of parliament and its practices and procedures.

The 25th edition  of Erskine May: Parliamentary Practice is free to access here.

About the author

Sir David Natzler is a former Clerk of the House of Commons and co-editor of the 25th edition of Erskine May: Parliamentary Practice, which is to be published online and will be free to access for the first time in its history.