Select Committee on Procedure Minutes of Evidence

Memorandum by the Clerk of the House and the Serjeant at Arms


  1.  This paper responds to a request for an updated memorandum about the Sessional Orders and Resolutions passed by the House each session on the day of the State Opening of Parliament, before the debate on the Address in reply to the Queen's Speech. It draws on the papers provided to the Procedure Committee by my predecessor in 1999 and 2002. Following a general introduction, the paper examines at some length the Order relating to the Metropolitan Police and some related issues about the maintenance of order in the immediate vicinity of the Palace of Westminster; there is then a section about the remaining Orders and Resolutions.

  2.  The House has, for several centuries, passed Orders and Resolutions at the beginning of each Session: currently, there are three Orders and three Resolutions, all of which have been renewed every year since 1713, and sometimes earlier, although they do not appear in their current position, immediately before the report of the Queen's Speech, until November 1852. [1] They refer to elections, witnesses, the Metropolitan Police, and the Votes and Proceedings.

  3.  The renewal of the Sessional Orders arises from the House's rule that its Orders are taken to expire at the end of the current Session unless it is stated otherwise, usually by declaring the Order to be a Standing Order. The practice of the House on Resolutions is more variable: many of the procedures of the House, for example the rules relating to Members' conduct, matters sub judice and the handling of Parliamentary Questions, are based on Resolutions which are not renewed. Some of the Standing Orders originated in Resolutions rather than Orders, and were declared to be Standing Orders either immediately or often several sessions later. Sessional Orders are also used when the House wishes to experiment with a procedure before deciding whether to make it permanent; these Orders are often renewed, but not on the first day of a Session. [2]A Select Committee on Standing Orders Revision in 1852 was explicitly asked to look at the Sessional Orders as well; as a result, several of the Orders and Resolutions passed regularly at the start of each Session, as well as other Resolutions passed at various dates back to 1667, were converted into Standing Orders. Annex B to this paper lists the history of various discontinued Sessional Orders and Resolutions.

  4.  The fact that the procedure has lasted so long (with occasional changes of detail) may reflect the importance the House attaches to propriety in elections, the keeping clear of access to the House and the protection of witnesses; it may be that successive generations of Members have believed that these matters should be kept in mind by being renewed; also, the conducting of business before considering the Queen's Speech emphasises a constitutional principle that when Parliament has been opened, the House is entitled to set its own agenda, and is not obliged to consider immediately the cause of its summons, as expressed in the Queen's Speech. This convention is, however, also upheld by the formal First Reading of the Outlawries Bill, and it is suggested that this proceeding alone would uphold the constitutional principle, as it did before 1852. [3]The other reasons for dispensing with the Sessional Orders and Resolutions at this point are that they are proposed without notice, and have occasionally given rise to debate, at a time when Members are expecting to proceed to consider the Queen's Speech, and that some of them are obsolete and potentially misleading. The remainder reflect the settled practice of the House and could be discontinued on that basis.


The text of the Order

    Ordered, That the Commissioner of the Police of the Metropolis do take care that during the Session of Parliament the passages through the streets leading to this House be kept free and open and that no obstruction be permitted to hinder the passage of Members to and from this House, and that no disorder be allowed in Westminster Hall, or in the passages leading to this House, during the Sitting of Parliament, and that there be no annoyance therein or thereabouts; and that the Serjeant at Arms attending this House do communicate this Order to the Commissioner aforesaid.

  5.  This Order has been passed in its existing form in every session since 1842; [4]before that, it was an Order to the Constables and other Officers of Middlesex and Westminster, which had been made regularly since 1713. The text of the previous Order is set out in Annex A.

The 1839 Act and the Commissioner's Order

  6.  The powers under which the police would give effect to this Order are not conferred by the House but are contained in the Metropolitan Police Act 1839, which provides in section 52:

    It shall be lawful for the Commissioner of Police from time to time, and as occasion shall require, to make regulations for the route to be observed by all carts, carriages, horses and persons, and for preventing obstruction of the streets and thoroughfares within the metropolitan police district, in all times of public processions, public rejoicings, or illuminations, and also to give directions to the constables for keeping order and for preventing any obstruction of the thoroughfares in the immediate neighbourhood of Her Majesty's palaces and the public offices, the High Court of Parliament, the courts of law and equity, the police courts, the theatres, and other places of public resort, and in any case when the streets or fares may be thronged or may be liable to be obstructed.

  7.  The Sessional Order, and the equivalent Order passed by the Lords, are conveyed to the Commissioner of the Police, who directs his constables to enforce the Act as follows:

    I, the Commissioner of Police of the Metropolis, do hereby give the following Directions to all Constables—

    1.  That they shall disperse all assemblies or processions of persons causing or likely to cause obstructions or disorder on any day on which Parliament is sitting within the area specified hereunder:

    East side of the River Thames between Waterloo and Vauxhall Bridges, Vauxhall Bridge Road, Victoria Street (between Vauxhall Bridge Road and Buckingham Palace Road), Grosvenor Gardens, Grosvenor Place, Piccadilly, Coventry Street, New Coventry Street, Leicester Square (north side), Cranbourn Street, Long Acre, Bow Street, Wellington Street, crossing Strand and Victoria Embankment to Waterloo Bridge.

    2.  That they shall prevent or remove any other cause of obstruction within the said area so that every facility shall be afforded for the free passage of Peers and Members to and from the Houses of Parliament on any day on which Parliament is sitting.

  8.  Before any action can be taken against an offender it is necessary for an officer to inform him or her of the details of the Commissioner's Directions. The powers by which the direction is enforced come not from the Sessional Order, but from statute law. Although the 1839 Act gives the police powers to keep the streets free from obstruction, it does not give them the power to arrest those who disobey their instructions. Powers under other statutes to act against obstruction of the highway are limited. However, wilfully obstructing a police officer in the execution of his duty is an arrestable offence and it is possible that this could be invoked against anyone failing to obey police instructions intended to enforce the Sessional Order. Otherwise the police have to rely on the provisions of the general law relating to public order and breach of the peace. These powers are of course available to them irrespective of the sessional resolution.

  9.  There were formerly Acts of Parliament preventing more than ten persons repairing together to the Houses of Parliament to present a petition (Tumultuous Petitioning Act 1661), or more than 50 persons to meet together within the distance of one mile from the gate of Westminster Hall (except places in the parish of St Paul's, Covent Garden), to consider or prepare a petition or other Address to one or both Houses on any day when those Houses shall meet and sit (section 23 of the Seditious Meetings Act 1817); however, these Acts applied only if the people concerned were proposing to present a petition or Address, and they were repealed by the Public Order Act 1986.


  10.  The reference in the Sessional Order to Westminster Hall is something of a special case. At the time that the Metropolitan Police Act was passed, Westminster Hall provided an important access to Parliament, but was a public space, and was not within the precincts of the House (and so was outside the control of the Serjeant at Arms). It was, however, part of the Palace of Westminster, and so not necessarily covered by the Act itself, which is directed at "streets and thoroughfares". The Sessional Order, by specifying Westminster Hall and the passages to the Commons, was presumably intended to bring this area under police control. The House authorities can now intervene to prevent disruption in Westminster Hall, since in 1965 its control was vested in the Lord Great Chamberlain and the Speakers of the two Houses.


  11.  Mr Speaker has for some time been concerned about the use of Parliament Square for unsightly and occasionally disruptive demonstrations; and many Members have expressed the view that more recent demonstrations against the war in Iraq have constituted an unacceptable intrusion into their working environment. Responsibility for Parliament Square is complex. The pavement immediately opposite Carriage Gates falls under the responsibility of Westminster City Council, as the highway authority. The land comprising the central garden of the square (which includes the grassed area) was vested in Her Majesty as part of Her hereditary possessions and revenues by section 384(1) of the Greater London Authority Act 1999; but by virtue of section 384(3) of the same Act, the "care, control and regulation" of the central garden are functions of the Greater London Authority. This division of authority adds to the difficulties facing the police and the House authorities when they attempt to apply the principles underlying the historic sessional order to present day circumstances.

  12.  Last year Westminster City Council sought an injunction in the High Court to restrain a named individual from obstructing the pavement opposite the House of Commons by displaying there a considerable number of placards supporting his protest against the policies of the Government in relation to Iraq. In judgement given on 4 October 2002 Mr Justice Gray declined to grant the injunction. Among other things, he observed that "the pavement which surrounds the grassed area in Parliament Square is not easily reached by pedestrians", and that there was no evidence of actual obstruction of the relatively few pedestrians who do use the inner pavements of the square. Further, and more crucially, he referred to the defendant's rights of free expression under Article 10 of the European Convention on Human Rights and to "the importance to be accorded to the right of freedom of expression, especially in the context of political discussion or debate". Using these two considerations to assess the reasonableness of the defendant's activities, the judge concluded that there was "no pressing social need to interfere with the display of placards so as to protect the right of others to pass and re-pass".


  13.  The sessional order to the Metropolitan Police is still seen by the House as having serious, practical significance; but its wording does not match the present physical surroundings of the House; and, however it were to be worded, it would not convey any legal authority on the police above and beyond the provisions of the general law. The Metropolitan Police Act 1839, which is formally linked to the process of responding to the sessional order, is concerned with many public areas in the capital and was not primarily intended as a protection for Members; moreover the Act's lack of effective enforcement powers means that the police's approach to the control of the streets in the immediate vicinity of the Palace of Westminster cannot in practice be different from its approach elsewhere. In these circumstances the disadvantage of putting the sessional order to the House every year, at a time when the House is full for the Queen's Speech debate, is that successive generations of Members are encouraged in the mistaken belief that its effect is to confer special and additional legal authority on the police in relation to the precincts of Parliament. The Committee may wish to consider whether, for this reason, it would be better to abandon the sessional order altogether, rather than attempt to update its wording.

  14.  I understand that the Committee intends to take evidence from the Metropolitan Police and the Home Office on these issues. Subject to their views, it would appear that new legislation would be needed to change the situation to a significant degree. Such legislation might replace the 1839 Act and resolve the current division of responsibility for Parliament Square. It could also provide more specifically for the regulation of activities in Parliament Square. Human Rights Act considerations might well, however, limit the extent to which restrictions could be placed on protests and demonstrations or greater powers be conferred on the police solely by reference to proximity to the Palace of Westminster.



    Ordered, That all Members who are returned for two or more places in any part of the United Kingdom do make their Election for which of the places they will serve, within one week after it shall appear that there is no question upon the Return for that place; and if any thing shall come in question touching the Return or Election of any Member, he is to withdraw during the time the matter is in debate; and that all Members returned upon double Returns do withdraw till their Returns are determined.

  15.  There are three parts to this Order.

    (a)   Members returned for more than one place: The last such return occurred in 1910, [5]and it is only this Order which prescribes what should be done about it. The prospect of a Member being returned for two places is now so remote that the Sessional Order could be considered to be obsolete. If it were to happen, the House could pass a specific Order to deal with the matter; or the Committee could recommend that this part of the Order should be regarded as the practice of the House, even if the Order as a whole is not renewed in future.

    (b)   Members to withdraw during debate on any dispute about their return: Responsibility for the determination of controverted elections was transferred from the House to the courts in 1868. Moreover, the House's sub judice rule now prevents discussion of matters before a court, which makes any debate on the return of a Member practically impossible. There seems no reason to preserve an order which so clearly relates to historical, rather than current, practice.

    (c)   Members returned upon double returns: A double return could formerly occur when two candidates obtained equal votes and the returning officer either did not have a vote or declined to use it, in which case two names were returned instead of one. However, since the 1949 Representation of the People Act, an equality of votes requires a choice to be made by lot, so a double return can no longer occur.

    Resolved, That if it shall appear that any person has been elected or returned a Member of this House, or endeavoured so to be by bribery, or any other corrupt practices, this House will proceed with the utmost severity against all such persons as shall have been wilfully concerned in such bribery or other corrupt practices.

  16.  Corrupt or illegal practices at elections, including bribery, are now covered by statute law (currently contained in the Representation of the People Act 1983).


    Resolved, That if it shall appear that any person has been tampering with any witness, in respect of his evidence to be given to this House, or any Committee thereof, or directly or indirectly has endeavoured to deter or hinder any person from appearing or giving evidence, the same is declared to be a high crime and misdemeanour; and this House will proceed with the utmost severity against such offender.

    Resolved, That if it shall appear that any person has given false evidence in any case before this House, or any Committee thereof, this House will proceed with the utmost severity against such offender.

  17.  The Witnesses (Public Inquiries) Protection Act 1892 provides penalties for those who intimidate witnesses before Committees of the House, and perjury (which applies only to evidence given under oath) could be dealt with under the Perjury Act 1911. More generally, both interfering with witnesses and giving false evidence would fall within the definition of a contempt given in Erskine May (22nd Edition, p 108), [6]and could be dealt with accordingly. The Resolutions therefore do not confer any power on the House which it does not possess irrespective of the Resolutions.


    Ordered, That the Votes and Proceedings of this House be printed, being first perused by the Speaker.

  18.  This Order reflects a decision in 1680 that the Speaker should peruse the Votes and Proceedings each day; before then a Committee was appointed to look into the Clerk's books once a week. The "perusing" is not in fact carried out, but is the reason for the Speaker's name (theoretically his signature) appearing at the end of the Votes and Proceedings (it does not appear in the Journals, the sessional cumulation of the Votes and Proceedings, which in other respects are almost identical). The corresponding Order in relation to the Journals was abolished in 2000, together with provisions about appointing who should print the Journals and the Votes and Proceedings) and other House papers such as the Order of Business are printed without such a specific Order. If the Committee were minded to recommend abolition of this Order, I should consult the Speaker as to whether his name should continue to appear.

1   In 1713 (and, for the Resolutions relating to witnesses, 1708) these Orders and Resolutions bore the sidenote "Usual Orders", which may indicate that they were so routine that they had not been consistently recorded in the Journals earlier. The Order relating to the Votes and Proceedings dates from 1680. Until 1852 the Sessional Orders were often passed on the day after the State Opening. Back

2   For example, the Standing Orders relating to Second Reading Committees and Sittings in Westminster Hall originated at Sessional Orders. Back

3   In the House of Lords, the Select Vestries Bill is read the first time at this point, but the other Sessional Orders (one corresponding to the Commons' Order relating to the Metropolitan Police) and Orders appointing Appellate and Appeal Committees, are taken at the end of the sitting. For a minute of 1609 on the practice of giving a bill a first reading, see CJ (1547-1628) 150: for a full account of the Outlawries Bill ("A bill for the more effectual preventing Clandestine Outlawries") and it predecessors, see House of Commons information Office Factsheet No G21 (formerly No 2), written by W R McKay. Back

4   Before the 1920s it referred to Commissioners (plural). Back

5   Mr William O'Brien was elected for the City of Cork and for the County of Cork (North East Division). He chose the City of Cork. Back

6   "Any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty: or which has a tendency, directly or indirectly, to produce such results." Back

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