Memorandum by the Clerk of the House and
the Serjeant at Arms
INTRODUCTION
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.
ACCESS TO
THE HOUSE:
THE ORDER
RELATING TO
THE METROPOLITAN
POLICE
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.
WESTMINSTER HALL
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.
PARLIAMENT SQUARE
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".
CONCLUSIONS
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.
OTHER SESSIONAL
ORDERS AND
RESOLUTIONS
Elections
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).
WITNESSES
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.
VOTES AND
PROCEEDINGS
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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