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. Continue reading

Parliament must act quickly to exert influence if it wishes to prevent a ‘no deal’ Brexit

NGQojaZG_400x400 (1)In four months’ time, the extension to the Article 50 period agreed in April will expire. The UK will have a new Prime Minister by then, although it remains unclear what position they will take if the Commons continues to refuse to approve the Withdrawal Agreement. Jack Simson Caird analyses the legal and political mechanisms available should parliament seek to prevent the next Prime Minister taking the UK out of the EU without a deal.

Boris Johnson has said that if he is the next Prime Minister the UK will leave the EU on 31 October with or without a deal. Theresa May, made the same pledge before the original Article 50 deadline on 29 March. However, after coming under significant pressure from MPs, she did not follow through and sought two extensions from the EU (resulting in the current exit day of 31 October).

Since Theresa May said that she would step down, there has been significant debate over whether the House of Commons could prompt Prime Minister Johnson to avoid ‘no deal’. In this post, I argue that MPs could stop a Prime Minister determined to deliver ‘no deal’ by putting the new leader under extreme pressure to reveal his position on Brexit from the very beginning of his premiership. There is no guarantee that steps taken by parliament to prevent ‘no deal’ would be legally effective, but the events in the first half of 2019 have shown that parliamentary pressure can result in a shift in the government’s position. It is constitutionally unsustainable for a government to pursue a policy which does not have the support of a majority of MPs. This fact will be front and centre from the very moment the new Prime Minister takes over.

Commanding the confidence of the Commons and ‘no deal’ Brexit

When the Conservative Party appoints a new leader, the next natural step is for Theresa May to go to the Queen and recommend that the MP chosen – likely to be Boris Johnson – is best placed to command the confidence of the Commons and should be appointed Prime Minister. This is usually a constitutional formality. However, unlike when Theresa May was appointed, the next Prime Minister will take over a minority administration. Furthermore, Theresa May resigned after it became clear that there was no prospect of her being able to get a majority for the Brexit deal in the Commons (and because she was not prepared to leave without a deal in the face of opposition from a majority of MPs). In fact, some Conservative MPs have already indicated their potential willingness to vote down a Johnson government if the new Prime Minister sought to pursue ‘no deal’. Should such claims become louder in the coming weeks, Theresa May might struggle to give the necessary assurances to the Queen that the person she recommends can command the confidence of a majority of MPs. Even if she does, the new Prime Minister will clearly be in a delicate constitutional situation. Continue reading

The politics of publishing select committee legal advice

f9pJoDDq_400x400 (1)picture.1257.1530012142Cristina.Leston.Bandeira1Parliamentary select committees at Westminster are assisted in their work by teams of impartial parliamentary staff who fulfil a variety of functions. This can include the provision of legal advice by parliamentary lawyers. In recent years, some committees have chosen to publish that legal advice. Drawing on their ongoing research, Ben Yong, Greg Davies and Cristina Leston-Bandeira examine the practice of publishing legal advice, the reasons behind it and the potential implications for the work of committees and their advisers.

In 2017, the House of Lords European Union Subcommittee on Financial Affairs took a highly unusual step. It published the advice provided by the then EU Committee legal adviser, Paul Hardy, as part of its inquiry on Brexit and the EU Budget. Hardy argued Article 50 of the Treaty on European Union allowed the UK ‘to leave the EU without being liable for outstanding financial obligations under the EU budget’ (p.63). The implications of such advice were politically controversial.

But the act of publishing in its entirety the in-house legal advice provided to the committee, and the legal adviser named, also merits serious attention. There is a small but growing trend of select committees at Westminster publishing the legal advice provided to them by the in-house lawyers of parliament (‘parliamentary lawyers’). The trend raises a number of questions: why are Westminster select committees publishing in-house legal advice; what does this tell us about the internal dynamics of select committees; and what are the implications of publishing internal advice for the House and parliament? This is the focus of our latest article, ‘Tacticians, Stewards and Professionals: The Politics of Publishing Select Committee Legal Advice’ (open access from the Journal of Law and Society).

We have been carrying out a bigger project, funded by the Leverhulme Trust, looking at the provision and reception of legal advice to the four legislatures of the UK. We have now interviewed about 75 individuals, of whom approximately 30 work or worked in Westminster.

Why is this happening?

Select committees will sometimes receive legal advice from the in-house legal services of parliament. In the House of Commons, for instance, much of this comes from the Office of Speaker’s Counsel: a small group of lawyers who are permanent, impartial House staff, employed to provide legal support and advice to the Houses of Parliament. ‘Legal advice’ can cover explanation and information to the application of relevant law to a specific set of facts, and any of the various stages in between. We focus on the more formal side of the spectrum. Continue reading

Looking forward, looking back: an evening with Sir David Natzler

IMG.2771On 19 March, the Unit held an event: ‘Challenges for Parliament: Looking Back, Looking Forward’, at which Sir David Natzler – who retired as Clerk of the House of Commons in February – spoke to Professor Meg Russell about his 40-year career in parliament. The discussion was both entertaining and informative; Dave Busfield-Birch summarises the key points.

Early days

Sir David first started working in the House of Commons in 1975, at what he called an ‘exciting time’, just two years after the UK had joined what was then known as the European Communities. His first assignment was as clerk to the European Legislation Committee, which was facing the novel challenge of sifting through the legislation passed by an unelected Council of Ministers sitting in the capital city of another country, and recommending which measures should be debated.

Parliament was unsurprisingly a very different place in the early years of Sir David’s Commons career. Talking of the key differences, he first spoke of how ‘expectations’ had changed significantly since then. For example, there were no limits on how long a Member could speak in those days. Whereas the Speaker (or one of the Deputy Speakers) can now impose relatively short time limits for MPs wishing to speak, that was not the case in 1975. Sir David considered this ‘almost one of the biggest changes’ of the past two or three centuries; that speaking for a long time can no longer be used to ‘destroy business’.

One of the other key differences between then and now is that the House of Commons lacked fiscal independence when he first started working there. It was instead reliant on the government for finance, thereby limiting its ability to take crucial decisions such as whether or not to recruit more staff. The Treasury hence had control of the Commons until the establishment of the House of Commons Commission in 1978, at which point the Commons became fiscally independent. Continue reading

Punch & Judy Politics? The roles and functions of Prime Minister’s Question Time

ruxandra.serbanIn their recently published book, former Labour advisers Ayesha Hazarika and Tom Hamilton explore the backstage machinery behind Prime Minister’s Question Time. Drawing on her PhD research, which focuses on parliamentary mechanisms for holding prime ministers accountable in parliamentary democracies, Ruxandra Serban reflects on how the book informs wider debates in legislative studies.

Prime Minister’s Question Time does not have a particularly good reputation. Designed as a weekly opportunity for MPs to question the Prime Minister, it is criticised for being noisy, excessively theatrical, scripted, and confrontational. But to what extent does it fulfil its role in holding the Prime Minister to account? What other roles does it perform for parliament and for the political system?

As PMQs provides a forum for the head of government to be questioned publicly and routinely by MPs, its implications for politics and for the workings of democracy are very important. In the recently published Punch & Judy Politics: An Insider’s Guide to Prime Minister’s Questions, Ayesha Hazarika and Tom Hamilton offer useful insights into the procedures and practices for holding Prime Ministers accountable. Drawing on interviews with key players at the centre of politics, as well as on their experience as advisers to several Labour Party leaders, the authors expose the machinery behind the weekly duel between party leaders. In what is a thorough and insightful overview of PMQs, they trace the development of the procedure from its introduction in 1961, document the extensive preparation that goes on both in No 10 and in the Leader of the Opposition’s office, and describe the strategies underpinning questions and answers. In providing such a detailed account, the book in part sets out to understand the roles and functions of PMQs, and contributes to a wider conversation in legislative studies about the functions of parliamentary questions, and of parliaments more generally. Continue reading

Exploring Parliament: opening a window onto the world of Westminster

leston.bandeira.thompson.and.mace (1)Cristina.Leston.Bandeira.1.000In February this year, Oxford University Press published Exploring Parliament, which aims to provide an accessible introduction to the workings of the UK parliament. In this post, the book’s editors, Louise Thompson and Cristina Leston-Bandeira, explain why the book is necessary and what it hopes to achieve.

If you travelled to Parliament Square today you’d see hundreds of tourists gathered in and around the Palace of Westminster. Over 1 million people visited parliament in 2017 to take part in organised tours, watch debates in the Lords and Commons chambers, attend committee hearings and visit its unique gift shops. Many more will have watched parliamentary proceedings on television; most likely snapshots of Prime Minister’s Question Time (PMQs). Recognition of the iconic building, with its gothic architecture, distinctive furnishings and vast corridors is high. However, the public’s understanding of what actually goes on within the Palace of Westminster is much lower.

As we write this blog it is another typically busy day in parliament. Among the many other things happening in the Commons today, Labour MP Diana Johnson is asking an Urgent Question on the contaminated blood scandal, there is a backbench debate on autism and an adjournment debate on air quality. Over in the Lords, peers will be scrutinising the Modern Slavery (Victim Support) Bill and debating the humanitarian crisis in Syria. Those of us who teach, research or work in parliament will know what each of these activities is. We’ll know why the Commons chamber will be far quieter during adjournment debates than at question times and we’ll be able to follow with relative ease the discussion in the Lords as peers scrutinise the various clauses, schedules, and amendments being made to government legislation. But to the wider public the institution can seem somewhat opaque. The language may seem impenetrable, the procedures archaic and the customs of debate unfamiliar. One may say there is therefore an important role, and perhaps duty, for those of us who teach and research parliament to inform and educate the wider public about the diverse range of roles being performed each day by the institution and its members. Continue reading