Erskine May: Parliamentary Practice

1956 Pages·2019·41.188 MB·English

by  Mark Hutton, David Natzler KCB, Matthew Hamlyn, Colin Lee, Chloe Mawson, Crispin Poyser, Eve Samson, Kate Lawrence

Introduction to the constituent parts of Parliament
Contents
History of representation in England
History of representation in Scotland
1.1Parliament is composed of the Sovereign, the House of Lords and the House of Commons. Collectively they form the legislature and as distinct
constituent parts of the constitution exercise functions and enjoy privileges peculiar to each.
History of representation in England
1.2The word ‘parliament’ is first used in England in the thirteenth century to describe an enlarged meeting of the King's council, attended by
barons, bishops and prominent royal servants, called together to attend the King, advise him on law-making and administrative matters and hear
and assist with his judicial decisions.
Although knights and burgesses were not invariably summoned to the earliest English Parliaments, by the middle of the fourteenth century they
attended regularly, and the Commons (as they were known collectively) came to claim that their assent was a necessary prerequisite for royal
taxation. By about the same period, the Lords and Commons began to deliberate separately. The King, Lords and Commons would meet together
initially; afterwards the Lords and Commons would deliberate in separate rooms; and finally the Commons or their spokesmen would rejoin the
King and the Lords.
By the thirteenth century Westminster was the centre of English royal government and the Palace of Westminster the habitual meeting place of the
English Parliament. From at least the mid-fourteenth century onwards, the Lords and Commons usually met for the opening of Parliament in the
Painted Chamber, and after hearing the cause of summons were ordered to meet separately for deliberation. The Lords would withdraw to a room
known as the White Chamber at the south-east corner of the old palace, where they continued to meet until the early nineteenth century, while the
Commons would deliberate in either the Painted Chamber or the Chapter House of Westminster Abbey. After 1394 they often used the Abbey's
refectory. They did not acquire a permanent meeting place until after 1547, when they were granted the use of St Stephen's Chapel within the
Palace.1
There were spokesmen for the Commons from the mid-thirteenth century, though it is not known whether they also presided over the meetings of
the Commons. Traditionally the first Speaker was Sir Peter de la Mare in 1376, though the first to be recorded on the Parliament Rolls is his
successor, Sir Thomas Hungerford.2 The first reference to a Clerk is to Robert de Melton in 1363.3
The term ‘Member of Parliament’ was originally taken to refer to members of either House. Since the Restoration of 1660, however, it has
usually referred to Members of the Commons only.4 The Parliamentary and Municipal Elections Act 1872 ended the use in the returns of the very
old terms of knights (for county constituencies), citizens or burgesses (who sat for cities and boroughs), barons of the Cinque Ports, and burgesses
of the Universities of Oxford and Cambridge; and these distinctions ceased to figure in general use. (For the numbers of members of the Commons
at various periods, see paras 1.7–1.11.)
Footnotes
1. For a full account of the meeting places of the Commons until 1547, see A I Dasent Speakers of the House of Commons (1911), p 41.
2. A I Dasent Speakers of the House of Commons (1911); P A C Laundy The Office of Speaker (1964).
3. O C Williams Clerical Organisation of the House of Commons (1953); W R McKay Clerks in the House of Commons,
1363–2002 (2002).
4. Ed H Hobhouse State Papers: Henry VIII (1830–52) iii, p 395; S R Gardiner History of the Commonwealth and Protectorate
(1894) i, p 296, n 2. See, however, HL Deb (1916) 22, c 82.
History of representation in Scotland
1.3The pattern of development in Scotland before 1707 was rather different. Parliaments—originally called colloquia —emerged (as they did in
England) in the middle of the thirteenth century, as more formal legal and judicial meetings of the King's council, attended by the various ranks of
nobility. Other Estates of the community of the realm were added as time went on. The first Estate (bishops and abbots) were among the earliest
members of Parliament. The abbots ceased to sit after the Reformation. The membership of the bishops was interrupted during the civil wars of the
seventeenth century. They returned at the Restoration, only to be removed finally on the re-establishment of presbytery at the Revolution of
1688–89.
Not long after the Wars of Independence in the early fourteenth century, representatives of the royal burghs began to attend, initially only when
taxation was demanded. They later became full partners in Parliament.
All freeholders who held of the King of Scots were bound to attend his court. The smaller barons were, however, frequently reluctant to do so,
and an attempt in 1426 to overcome the problem by instituting shire representative elections on the English model failed. Following the large
attendance of freeholding small barons at the Reformation Parliament in 1560 and a further Act of 1587 dealing with shire elections, the presence
of shire commissioners, representative of the small barons and separate from the higher nobility, gradually became more regular.
Though the Scottish Parliament was formally unicameral, each of the Estates had assigned to it a particular place in the Parliament House and was
separately represented on committees.1
Footnotes
1. See Keith M Brown and Roland J Tanner (eds) The History of the Scottish Parliament, Volume 1: Parliament and Politics in
Scotland, 1235–1560 (Edinburgh University Press, 2004); Keith M Brown, Alistair J Mann (eds) The History of the Scottish
Parliament, Volume 2: Parliament and Politics in Scotland, 1567–1707 (Edinburgh University Press, 2005); Keith M Brown, Alan
R MacDonald (eds) The History of the Scottish Parliament, Volume 3: Parliament in Context, 1235–1707 (Edinburgh University
Press, 2010).
The Sovereign
Contents
Prerogative in connection with Parliament
Limitations of prerogative
1.4The Crown is hereditary, subject, however, to special limitations by Parliament; and the King or Queen has always enjoyed, by prescription,
custom and law, the chief place in Parliament and the sole executive power. The right of succession and the prerogatives of the Crown itself are,
however, subject to limitations and change by legislative process with the consent and authority of the Sovereign;1 and in the exercise of the
prerogatives and powers of the Crown the Sovereign now, by constitutional convention, depends on the advice of Ministers of the Crown, who
continue to serve in that capacity only so long as they retain the confidence of Parliament.
Footnotes
1. For additions made by statute to the royal style and title, see the Royal Titles Acts 1876, 1901 and 1953, and see also, The Title of the
Sovereign (Cmd 8748); and MacCormick v The Lord Advocate 1953 SC 396 at 403 and 409–10. The Succession to the Crown Act
2013 made provision about non-discrimination of heirs to the Throne on the basis of gender.
Prerogative in connection with Parliament
1.5The prerogatives of the Crown, in connection with the legislature, are of paramount importance. The legal existence of Parliament results from
the exercise of royal prerogative (see para 8.2 ). As ‘supreme governor, as well in all spiritual or ecclesiastical things or causes as
temporal’,1 the Queen appoints the archbishops and bishops of the Church of England who, as ‘Lords Spiritual’, form part of the
House of Lords. All titles of honour are the gift of the Crown, and thus all ‘Lords Temporal’ in the upper House have been created by royal
prerogative, and their number may be increased at pleasure. To a Queen's writ, also, Members of the House of Commons owe their election as
the representatives of the people. The prorogation of Parliament is also a prerogative act of the Crown (see para 8.5 ). Other important powers
will be described in the appropriate place.
The Crown also has a close relationship with the presiding officer of each House. The Speakers of both Houses, though elected by them, are
submitted to the approbation of the Crown (paras 4.48 and 8.20 ).2
Footnotes
1. 1 Eliz 1, c 1, s 19.
2. LJ (239) 1000.
Limitations of prerogative
1.6Many changes have been effected at different times in the legal succession to the Crown (a notable example are those that occurred at the
Revolution of 1688–89). The power of Parliament over the Crown is distinctly affirmed by the statute law and recognised as an important
principle of the constitution.
The Act of Settlement (1700–01) affirms ‘that the laws of England are the birthright of the people thereof; and all the Kings and Queens1 who
shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers
ought to serve them respectively according to the same’. The Succession to the Crown Act 1707 declares it high treason for anyone to
maintain and affirm, by writing, printing, or preaching, ‘that the Kings or Queens of this realm, by and with the authority of Parliament, are not
able to make laws and statutes of sufficient force and validity to limit and bind the Crown, and the descent, limitation, inheritance, and government
thereof’. The relationship between the Crown and Parliament had earlier been defined in the Bill of Rights, which declared, inter alia, that
‘the pretended power of suspending or dispensing with laws, or the execution of laws, without consent of Parliament, is illegal’, and that
‘levying money for or to the use of the Crown, by pretence of prerogative, without grant of Parliament for longer time or in other manner than
the same is or shall be granted, is illegal’.2
Footnotes
1. For a statutory confirmation of the ancient right of females to inherit the Crown, see 1 Mar Sess 2, c 1; Queen Regent's Prerogative Act
1554 (1 Mar Sess 3, c 1); 1 Eliz, c 3; the Succession to the Crown Act 2013 ended the system of male preference primogeniture. For the
form in which the accession of a Sovereign is recognised, see CJ (1837) 488; ibid (1901) 2; ibid (1910) 148; ibid (1935–36) 49; ibid
(1936–37) 58; ibid (1951–52) 88.
2. 1688, c 2, arts 1 and 4.
Medieval and early modern representation: England and Wales
1.7The number of Members admitted to the House of Commons has varied considerably at different periods. In the early fifteenth century there
were nominally over 250 Members of the Commons; there were two knights from 37 counties, two citizens or burgesses from each of 80 or so
cities or boroughs which were by custom represented, and 14 Members from the Cinque Ports. It is, however, impossible to say how many
actually attended any Parliament. At the beginning of Henry VIII's reign there were about 300 seats available.1 In that reign 27 Members were
added by statute for Wales2 and four for the county and city of Chester,3 and in Charles II's reign four for the county and city of Durham.4
Between the reigns of Henry VIII and Charles II 180 new Members were added by royal charter.5 In 1673 Newark was the last constituency to
be enfranchised in this way. There were then 513 Members in England and Wales.6
Footnotes
1. S T Bindoff (ed) History of Parliament 1509–1558 (1982).
2. Laws in Wales Act 1535 (27 Hen 8, c 26).
3. 34 Hen 8, c 13.
4. 25 Cha 2, c 9.
5. 2 Hatsell 413.
6. B D Henning (ed) History of Parliament 1660–1690 (1983), p 104.
Modern representation: Great Britain and the United Kingdom
Contents
England and Wales
Scotland
Ireland and Northern Ireland
1.8Forty-five Members from Scotland sat in the Parliament of Great Britain after the Union of 1707, and 100 from Ireland following the Union of
1801 which created the Parliament of the United Kingdom. By these successive additions the number of the Commons was increased to 658; and
notwithstanding the changes effected in the distribution of the elective franchise by the Reform Acts in 1832, that number continued unaltered,
except by the disenfranchisement of certain cities and boroughs for corruption, until the year 1885, when the number of the House was raised to
670 by the operation of the Redistribution of Seats Act of that year. By the Representation of the People Act 1918 the number of Members was
increased to 707, but the reduction of the number of Members for constituencies in Northern Ireland under the Government of Ireland Act 1920,
and the cessation of representation of constituencies in the rest of Ireland consequential on the establishment of the Irish Free State, reduced the
number of Members of the House of Commons to 615. As a result of the House of Commons (Redistribution of Seats) Act 1944, which made
temporary provision for the subdivision of certain abnormally large constituencies (specified in the second schedule to the Act),1 the number of
Members was increased by 25 to 640. This number was reduced by the Representation of the People Act 1948, to 625, subject to variation by
Order in Council on the recommendation of the Boundary Commissions; such Orders in Council were made under the authority of the House of
Commons (Redistribution of Seats) Act 1949 and since 1986 under the Parliamentary Constituencies Act 1986 (see para 2.3 ).
Although the 1986 Act states that the number of constituencies in Great Britain should not be ‘substantially greater or less than 613’, there
has been an increase in the number of seats since 1948. Other rules for the redistribution of seats set down in the Act made it extremely difficult for
the Boundary Commissioners to create 613 seats with electorates of broadly the same size.2 Accordingly the creation of new constituencies,
because of the growth of population in some areas, was not offset to the same extent by the reduction of seats where population has fallen.
There are currently 650 Members of the House of Commons. In 2010, the coalition Government undertook to create ‘fewer and more equal
sized constituencies', and subsequently the Parliamentary Voting System and Constituencies Act 2011 made provision to reduce the number of
Members to 600 and to ensure more equal-sized electorates to within 5% above or below the arithmetic norm. The 2011 Act required the
Boundary Commissions to report their recommendations for achieving this reduction to the Secretary of State in September 2013; this deadline
was delayed until September 2018 by the Electoral Registration and Administration Act 2013. (see para 2.3 ).3
Footnotes
1. This partial measure of redistribution was recommended by the Speaker's Conference on Electoral Reform and Redistribution of Seats
1944, in their first report. (Letter from Mr Speaker to the Prime Minister, 24 May 1944; Cmd 6534.)
2. See also Boundary Commissions Act 1992 (c 55), s 3.
3. Electoral Registration and Administration Act 2013 (c 6), s 6.
England and Wales
1.9From 1673 to 1832 there were 513 Members in England and Wales. Following the English Reform Act (the Representation of the People Act
1832) the number was reduced from 513 to 500. The number of knights of the shire was increased to 159. Many boroughs were disenfranchised,
while new boroughs were created; after the Act the two universities and the several cities and boroughs elected 341 Members.
Further changes were made by the Representation of the People Act 1867 and the Redistribution of Seats Act 1885. Under the Representation of
the People Act 1918, England and Wales returned 528 Members. This number was temporarily increased to 553 under the provisions of the
House of Commons (Redistribution of Seats) Act 1944, but was reduced to 542, with provision for variation on the recommendation of the
Boundary Commission, by the Representation of the People Act 1948, which abolished University representation and adjusted the boundaries of
many constituencies. The number of constituencies in England and Wales following the general election of 2017 was 573.1
Footnotes
1. The Parliamentary Constituencies and Assembly Electoral Regions (Wales) Order 2006 (SI 2006/1041); the Parliamentary Constituencies
(England) Order 2007 (SI 2007/1681); and the Parliamentary Constituencies (England) (Amendment) Order 2009 (SI 2009/698).
Scotland
1.10The number of Members for Scotland was increased by the Representation of the People (Scotland) Act 1832 from 45 to 53, 30 of whom
were commissioners of shires, and 23 commissioners of burghs. Further changes were made by the Representation of the People (Scotland) Act
1868 and the Redistribution of Seats Act 1885. Under the Representation of the People Act 1918, Scotland returned 74 Members: 38 Members
for 21 parliamentary counties; 33 Members for 13 parliamentary burghs; and three Members for four universities in one university constituency.
This representation was not affected by the House of Commons (Redistribution of Seats) Act 1944, but the abolition of university representation
under the Representation of the People Act 1948 reduced the number to 71, with provision for variation on the recommendation of the Boundary
Commission. In 1983 this number increased to 72, and in 2005 it was reduced to 59, following the creation of the Scottish Parliament and a
subsequent review by the Scottish Boundary Commission.1
Footnotes
1. The Parliamentary Constituencies (Scotland) Order 2005 (SI 2005/250). The Scotland Act 1998 (c 46), s 86, abolished the minimum of
71 constituencies for Scotland and required the Boundary Commission for Scotland, in its next report, to calculate the number of
constituencies by using the electoral quota for England.