VOL. 85 FOR 2017 T H E J O U R N A L O F T H E S O C I E T Y O F C L E R K S - AT- T H E - TA B L E I N C OMMO N W E A LT H PA R L I A M E N T S VOLUME 85 2017 £15.00 Journal of the Society of Clerks-at-the-Table in Commonwealth Parliaments Please check colours, board and finish with Kinnaird marketing Green and red should match Vol.75 2007 edition???? The Table THE JOURNAL OF THE SOCIETY OF CLERKS-AT-THE-TABLE IN COMMONWEALTH PARLIAMENTS EDITED BY NICOLAS BESLY VOLUME 85 2017 THE SOCIETY OF CLERKS-AT-THE-TABLE IN COMMONWEALTH PARLIAMENTS HOUSE OF LORDS LONDON SW1A 0PW ©The Society of Clerks-at-the-Table in Commonwealth Parliaments 2017 ISBN 978-0-904979-42-3 ISSN 0264-7133 CONTENTS Editorial 1 Archibald Milman and the transformation of questions to ministers, 1871–1902 7 COLIN LEE Constitutional issues and the 2016 double dissolution of the 31 Australian Parliament DAVID ELDER The European Union referendum and Parliament 42 JULIA LABETA Irreconcilable differences and the father of reconciliation 56 NIGEL PRATT A political act? The story of the Trade Union Bill and an 69 unexpected Lords committee TOM WILSON Committee of Privileges: inquiry on select committees and 77 contempt MARK EGAN Parliamentary Committee on Electoral Reforms in Pakistan 81 NIGHAT PARISTAN Miscellaneous notes 86 Comparative study: sub judice rules 126 Privilege 153 Standing orders 174 Sitting days 184 Unparliamentary expressions 186 Books on parliament in 2016 196 Index 204 iii The Table The Journal of the Society of Clerks-at-the-Table in Commonwealth Parliaments EDITORIAL This edition of The Table opens with another masterful article about Archibald Milman from Colin Lee, a Principal Clerk in the UK House of Commons. The last two editions featured articles covering Milman’s time as Second Clerk Assistant then Clerk Assistant, focusing on his central role in developing procedures to overcome obstructionism by late-19th-century Irish MPs. Most of the procedures developed then are recognisable today. This edition’s article continues the theme, detailing Milman’s involvement in establishing a structure and rules for questions to ministers. In early Victorian times the concept of notice of questions was alien: with no written notice, there was little scope for restrictions on what may be asked. Anyway the main diet of Parliament was legislation and debates; the function of holding the government to account per se was secondary. Milman helped change that. During his time as a clerk the number of questions to ministers increased greatly. New rules for questions were developed, principally by Milman, and largely hold true today. Let there be no question: this article is a rewarding read. Next up is an article by the Clerk of the Australian House of Representatives, David Elder, about events which led to the federal general election in 2016. The Australian constitution is partly based on the Westminster model. However, the Commonwealth of Australia Constitution Act 1900 predates the (UK) Parliament Act 1911, which created a mechanism for resolving disputes between the upper and lower Houses. The 1900 Act was based on UK constitutional practice at that time, which was that an irresolvable conflict between the two Houses was settled by holding a general election. In Australia, where the Senate is elected, this means both Houses hold an election—a “double dissolution” election. This article tells the story of how such an election came about in 2016. The edition covering 2016 would hardly be complete without an article on Brexit. Thankfully we have one. It is by Julia Labeta, until recently a clerk on the House of Lords’ EU Committee team. The article focuses on the parliamentary aspects of the EU referendum and its aftermath. It is perhaps ironic that in spite of how controversial the debate on leaving the EU has been, and remains, the points at which Parliament has been able to exercise most control over the process have seen an unexpected level of consensus. In particular, once the government had secured an electoral mandate to hold the referendum the bill to provide for it was passed with little dissent. Likewise after the Supreme Court ruled that ministers did not have a prerogative power to trigger article 1 The Table 2017 50 to start the formal withdrawal process, the bill providing the prime minister with a statutory power to do so was passed with big majorities in the House of Commons. Some would see an irony here: a process designed to return power to Westminster witnessing a Parliament seemingly reluctant to exercise ultimate power. But another way of analysing this controversial territory is to recognise that some big political decisions are taken outside Parliament; in these cases it may be the job of Parliament to make such popular choices work. The fourth article also touches on the 2016 double dissolution in Australia. A few days before the dissolution a vacancy arose amongst the representation of Western Australia in the Senate. Such vacancies are filled following a joint sitting of the Legislative Council and the Legislative Assembly of Western Australia. But difficulties arose because the Legislative Council was adjourned and not scheduled to return until after the federal dissolution. A dispute with the executive followed about how the Council could be recalled, including whether a power to recall was vested in the Governor as part of the state’s reception of UK laws or was vested in the Council’s President. Nigel Pratt, the Clerk of the Legislative Council, recounts the story. The next article covers a procedural novelty in the House of Lords. The Trade Union Bill was a politically contentious measure introduced by the newly elected Conservative government. Among other provisions it sought to limit how members of trade unions could contribute to political funds, which are used to make donations to political parties—overwhelmingly to the Labour party. Thus there was a significant party divide over the bill, with critics arguing that it addressed one aspect of party funding to the detriment of one party, without looking at the whole issue of party funding. As the bill was sent to the House of Lords it looked as though the government would be defeated in votes on some key measures. But before that could happen the House agreed to set up a select committee to examine the bill’s provisions on political funds. This committee was not part of the bill’s formal stages; it existed alongside the normal scrutiny procedures for a bill. It was given a month to report. The clerk of the committee, Tom Wilson, explains all. The sixth article covers a recent experience in Jersey with a committee seeking to order the production of documents. This power is provided for in regulations made in 2006. The regulations set out criteria and a process for issuing a summons. Mark Egan, the Greffier of the States of Jersey, explains how these were tested when a quasi-state development corporation sought to resist producing documents relating to a controversial waterfront development. The final article is by Nighat Paristan, a research officer at the National Assembly of Pakistan. He explains the important role played by the Parliamentary Committee on Electoral Reforms in Pakistan in helping to cement free and fair elections. 2 Editorial This edition also contains the usual interesting selection of updates from jurisdictions and a comparative study on sub judice rules. This is the companion to the study in volume 82 (2014) about relations between parliaments and the judiciary. At the end of the edition is a magnificent book review by Brendan Keith, the distinguished editor of this journal from 1984 to 1990. I am grateful for all the contributions in this edition. I hope you enjoy reading them as much as I have. After nearly a decade as editor the time has sadly come for me to hand over the editorship. It has been enjoyable. Thank you for contributing and thank you for reading. MEMBERS OF THE SOCIETY Australia Senate Rosemary Laing announced in September 2016 her intention to retire as Clerk of the Senate on 8 March 2017. Richard Pye, formerly Deputy Clerk of the Senate, has been appointed as her replacement. Keith Oscar Bradshaw, Clerk of the Senate from 1980 to 1982, died on 2 February 2017. Northern Territory Legislative Assembly Sean O’Connor joined the Legislative Assembly as Clerk Assistant Chamber and Serjeant at Arms. New South Wales Legislative Assembly In March 2016 Helen Minnican was appointed Deputy Clerk of the Legislative Assembly. In September 2016 she was appointed Acting Clerk of the Legislative Assembly. In May 2016 Catherine Watson was appointed Clerk-Assistant, Committees and Corporate. In September 2016 Leslie Gonye was appointed Acting Deputy Clerk, Clerk-Assistant, Table and Serjeant-at-Arms. On 23 September 2016 Ronda Miller retired as the 18th Clerk of the Legislative Assembly after 26 years’ service in the Assembly. Ms Miller previously held the positions of Clerk-Assistant, Committees, Clerk-Assistant, Table, and Serjeant-at-Arms. She was the first woman to hold all of these positions before becoming the first woman Clerk of the Legislative Assembly in November 2011, when she succeeded Russell Grove. Ms Miller’s initial employment in the Parliament was in the Parliamentary Library. She left the Library to work as adviser to the Leader of the House and then to work in the Department of Attorney General. 3 The Table 2017 Ms Miller returned to the Legislative Assembly in 1990, where she took up the newly created position of Clerk-Assistant, Committees.