Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament Twenty-second Edition Editors Sir Donald Limon, KCB Clerk of the House of Commons W R McKay, CB Clerk Assistant, House of Commons Assistant Editors House of Commons G Cubie Principal Clerk, Table Office R J Willoughby Registrar of Members' Interests W A Proctor Clerk of Standing Committees and Clerk of Private Bills HEIrwin Second Clerk of Select Committees House of Lords E C Ollard Clerk of Public Bills Butterworths London 1997 CONTENTS Preface vii Table of Abbreviations xlvi PART I CONSTITUTION, POWERS AND PRIVILEGES OF PARLIAMENT Introduction 3 Chapter 1 The constituent parts of Parliament Introductory 9 The Sovereign 10 The House of Lords 12 Lords Spiritual 12 Lords Temporal 12 Disclaimer of peerage 13 Peers of Ireland 14 Expenses of Members of the House of Lords 14 The House of Commons 15 Representation in the House of Commons 15 Financial status of the House of Commons 18 Payment of Members 18 Increase in payment of Members 19 Salaries of Members who are Officers of the House, Ministers of the Crown, Leader of the Opposition, Opposition Whips 20 Travelling expenses of Members 22 Members' Fund 23 Parliamentary Contributory Pension Fund 24 History of Parliament Trust 25 Chapter 2 Elections The Electorate 26 Disqualification of electors 27 Constituencies 27 Registration of electors 28 Registration officers 29 Postal and proxy voting 29 The holding of elections 29 Election campaigns 30 xi xii Contents New writs 31 Vacancies during a session 31 Period for presenting petitions 31 Vacancy by peerage 31 Supersedeas to writs 32 Issue warrants by the Speaker during adjournment or recess 32 Appointment of Members to issue writs 33 Manner of issue of writs 33 Return of writs 34 Correction of error in return 34 Failure to make return to writ 34 Members returned for two places 34 Equality of votes cast 35 Trial of controverted elections 35 Procedure under the Representation of the People Act 1983 35 Proceedings of the House in matters of election 36 Proceedings of House upon determination of election trials 36 Corrupt practices 37 Chapter 3 Disqualification for membership of either House Disqualification for membership of the House of Lords 38 Aliens 38 Persons under twenty-one 38 Bankruptcy 38 Treason 39 Mental Health Act 1983 39 Disqualification by sentence of the House 39 Disqualification for membership of the House of Commons 40 Aliens 40 Persons under twenty-one 40 Mental illness 40 Peers 41 Bankruptcy 41 Treason 42 Other crimes 42 Corrupt practices at elections 42 Clergy 43 Returning officers 44 Petitioning candidates 44 Disqualification of certain office-holders 44 Non-political office 44 Public service disqualification 45 Disqualification by particular office 46 Chiltern Hundreds and Manor of Northstead 47 Effect and disregard of disqualification 48 Jurisdiction of the Privy Council in disqualification 49 Penalties 49 Amendment of House of Commons Disqualification Act 1975 50 Political office 50 Contents xiii Chapter 4 Power and jurisdiction of Parliament Extent of legislative authority of Parliament 52 Commonwealth legislation 53 The European Communities Act 1972 54 Extent of the Prerogative of the Crown in reference to Parliament 55 Annual meeting of Parliament 55 Summons 55 Demise of the Crown 56 Causes of summons 56 Prorogation 56 Effect of a prorogation 57 Meeting of Parliament accelerated or deferred by proclamation 57 Meeting of Parliament accelerated pursuant to statute 57 Meeting for despatch of business 57 Adjournment 58 Dissolution 58 Rights and functions of the House of Lords 59 House of Lords as a Court of Judicature 60 Principal power of the Commons 63 Ministerial accountability to Parliament 63 Power to summon witnesses 64 Chapter 5 The privilege of Parliament What constitutes privilege 65 Lords: Privileges of Parliament and of peerage 67 Historical development of privilege 68 Freedom of speech 69 Freedom from arrest 72 Freedom of access 78 Favourable construction 78 Privilege with respect to the constitution of the House 79 Penal jurisdiction 80 Modern application of privilege law 81 Chapter 6 Privilege of freedom of speech Freedom of speech in debate 83 Publication of debates or proceedings 84 Commons 85 Lords 85 Publication outside Parliament of proceedings and debates in Parliament 86 Exclusive cognisance of proceedings 88 Article IX of the Bill of Rights 93 'Impeached' and 'questioned' 93 'Proceedings in Parliament' 95 Implied amendment, etc 97 Proceedings, precincts and criminal acts 98 xiv Contents Chapter 7 Privilege of freedom from arrest Criminal law and statutory detention 100 House to be informed of arrests 100 House to be informed of sentences for criminal offences 101 Statutory detention 102 Contempt of court 102 Bankruptcy 104 Detention under the Mental Health Act 104 Privileges related to freedom from arrest 105 Admissibility of Members as bail 105 Members summoned as witnesses 105 Exemption from jury service 106 Duration of the privilege of freedom from arrest 106 House of Lords 106 House of Commons 107 Privilege extending beyond members 107 Chapter 8 Contempts Misconduct in presence of either House or a committee 108 Strangers 108 Witnesses 109 Disobedience to rules or orders of either House or of a Committee 110 General and particular rules 110 Orders of committees 110 Petitions and other documents 111 Misconduct of Members or Officers 111 Members deliberately misleading the House 111 Corruption or impropriety 112 Professional services connected with proceedings 115 Advocacy by Members of matters in which they have been concerned professionally 116 Other misconduct by Members 116 Misconduct by officers 116 Constructive contempts 117 Reflections on either House 117 Publication of false or perverted reports of debates 117 Premature publication or disclosure of committee proceedings 118 Other indignities offered to either House 120 Obstructing Members of either House in the discharge of their duty 121 Arrest 121 Molestation, reflections and intimidation 121 Improper influence 124 Misrepresenting Members 125 Obstructing officers of either House 125 Obstruction or molestation 125 Legal proceedings against officers, etc 126 Obstructing witnesses and others 126 Arrest 126 Contents xv Molestation of or interference with witnesses 126 Tampering with witnesses 127 Legal proceedings against witnesses 128 Protection of petitioners and others with business before Parliament or with Members 128 Constituents and others in communication with Members 129 Chapter 9 Penal jurisdiction of both Houses Committal 131 Warrants of committal 133 Protection of officers in executing warrants 134 Warrants of committal and the courts 135 Committal without warrant 136 Period of committal and discharge 137 Punishment of strangers other than by committal 138 Fines 138 Reprimand or admonition 138 Prosecution of offenders 139 Punishment of Members 139 Reprimand or admonition 140 Suspension 140 Expulsion 141 Power of both Houses to secure attendance of persons on matters of privilege 142 Power to send for persons in custody 142 Chapter 10 Complaints of breach of privilege or contempt Raising a complaint 144 Hearing of counsel 145 Consideration of reports of committees on complaints 146 Proceedings against Members 148 Complaints against Members or officers of the other House 149 Complaints reported by committees 149 Complaints by officers of either House 150 Disclosure following secret session 151 Chapter 11 The courts and parliamentary privilege The opposing views 153 First phase of the conflict 155 The second phase: the nineteenth century 160 Early and mid-twentieth century 164 Later twentieth century cases 165 xvi Contents PART II PROCEEDINGS IN PARLIAMENT: PUBLIC BUSINESS Chapter 12 Precincts and organization of Parliament Palace of Westminster 175 General arrangements 175 Chambers of the two Houses 176 Places of Members 178 Lords 178 Commons 178 Attendance of Members 179 Leave of absence 179 Lords 179 Commons 180 Access to the Houses of Parliament 180 Admission of strangers 180 Lords 180 Commons 181 Officers of the two Houses 184 Officers of the Lords 184 The Lord Chancellor 184 Deputy Speakers 184 Chairman and Principal Deputy Chairman of Committees 185 Deputy Chairmen of Committees 185 Permanent officers of the Lords 185 Clerk of the Crown in Chancery: Lords and Commons 186 The Gentleman Usher of the Black Rod and Serjeant-at-Arms 187 Officers of the Commons 188 The Speaker of the House of Commons 188 The Speaker as representative of the House of Commons 188 The Speaker as presiding officer of the House of Commons 189 The Speaker's administrative duties 192 Resignation of Speaker 193 Deputy Speaker in the Commons (Standing Orders Nos 2 and 3) 194 The Chairman of Ways and Means 195 Deputy Chairman of Ways and Means 196 Temporary chairmen 197 Principal Permanent Officers of the Commons 197 Internal administration 200 In the House of Lords 201 Offices under the Clerk of Parliaments 201 In the House of Commons 202 The House of Commons Commission 202 Departments in the House of Commons 204 Shorthand writer: Lords and Commons 208 Other statutory officers etc 209 The Comptroller and Auditor General 209 The Public Accounts Commission 209 The Parliamentary Commissioner for Administration 210 Party Machinery in Parliament 210 Contents xvii Changes in procedure effected by party system 210 The Official Opposition 211 Leader of the House of Commons 212 Constitution and financing of party machinery 213 Duties of Whips 213 Party Machinery in the