Select Committee on Procedure Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)



  Q1  Chairman: Can I welcome Sir Michael Cummins, Sergeant at Arms to the House of Commons, and Mr Roger Sands, Clerk of the House of Commons, to help us with our, I think it will be, relatively short inquiry into Sessional Orders. We have received papers. Can I, from the chair, ask you the first question. Is it in fact a fair summary of your paper to suggest that all the Sessional Orders—and I think there are six of them—and Resolutions are either unnecessary or misleading and should therefore be discontinued?

  Mr Sands: I think that probably the Serjeant is only concerned with the Metropolitan Police one and I will be relying on him very heavily when we come to that one. Yes, I think that is a fair summary. As you know, this inquiry was very much the initiative of my immediate predecessor, Sir William McKay; he was very keen that the Committee should look at these Sessional Orders. So, this paper is heavily indebted to his work with the exception of the part about Parliament Square. He was, and indeed still is, a very considerable historian of parliament and a great defender of its traditions and privileges; but I think he felt—and I am bound to say that I agree with him—that this is a case where something which one might, a few years ago, have regarded as just a quaint survival has now tipped over the borderline and has become a bit of an embarrassment. Just to set the scene for the Committee, although I am sure they remember, we are talking about the afternoon immediately after a State Opening when the House is very full and Members are all there waiting for the debate on the Queen's Speech. Particularly at the start of a new Parliament, the eyes of the world are literally on the House because one might have a new Government and certainly one has a Government with a new programme. Then, the very first thing that happens is—we have no order paper, so these motions are not actually down on the order paper and they therefore have to be read out word for word by the Speaker and the language is somewhat archaic. These motions are in fact debatable and have on occasions been debated and I have one precedent here where the Liberal Democrats, who were feeling aggrieved about something or other, forced a vote on the final one, on the Votes and Proceedings. So, it somehow seems to set the wrong tone and pattern for a new session. Then, even beyond the issue of tone and style, when you get below that to the substance of some of these Sessional Orders, you find, as the analysis shows, that many of them are actually anomalous, do not fit in with other legislation and do not reflect the realities of the present situation.

  Q2  Chairman: Sir Michael, do you wish to add to that?

  Sir Michael Cummins: I obviously deal more with the practicalities as opposed to the procedural aspects of this issue and I, for example, religiously write to the Commissioner of Police after every State Opening of Parliament and transfer the wishes of the House with regard to the Metropolitan Police Standing Order regarding access and the safeguarding of access and it is a case that one believes what one writes and one hopes or trusts that that will be observed by the Metropolitan Police and I know that Members feel exactly the same and many come up to me and ask, "What are you doing about the Sessional Order if it goes wrong?" and I quite understand their feelings. However, in practical terms, I have now learned over many years' experience that the practicalities of modern legal processes with regard to that Sessional Order are now extremely limited.

  Q3  Chairman: Can I just be specific for a moment. One of those Sessional Orders and Resolutions talks about the need to guarantee access to the House by Members. Are you saying that, as it stands, that is really no longer necessary or can be enforced? I have to tell you that, from my own experience since I have been a Member of this House, when, on two occasions, I marched with textile workers from Hyde Park to demonstrate our concern about the way in which Government were dealing with the textile and clothing industry, the closest we were allowed to come in a well-ordered march and demonstration was the Tate Gallery. When was it decided or when did the leak or break-through take place that allowed such marches and demonstrations to come into Parliament Square itself?

  Sir Michael Cummins: I think this has been a progressive process and, certainly over the past three or four years since I have been Serjeant, I can give you a couple of examples, if I may. One example is the Chinese movement, Falang Gong, decided to lie down in Whitehall; they blocked Whitehall to Members and the general public and traffic going along Whitehall. The police were extremely reluctant to remove them. Similarly, during the beginnings of the Iraq conflict, a number of schoolchildren came here; they got into Parliament Square, laid down outside Carriage Gates and exactly the same happened: the police were extremely reluctant to move them. When I summoned the Commander who was in charge of public order, he told me, "We are really up against it. If we lift up these children and if one of them grazes his knee, for example, we are in for legislation against us on that score." So, I think that the police are now remarkably careful and conservative about what they actually do in terms of physically removing people who are evidently denying access to Members, for example through Carriage Gates or elsewhere.

  Q4  Chairman: Almost anarchy!

  Sir Michael Cummins: You could say that.

  Mr Sands: Perhaps I should just pick up the point about your textile workers. I imagine that you were regarded as perhaps a tumultuous petition for the purpose of the Tumultuous Petitioning Act 1661, which was only repealed in 1986. I do not know if this was pre-1986.

  Q5  Chairman: I think it was.

  Mr Sands: That provided that not more than 50 persons could meet together within the distance of one mile from the gate of Westminister Hall, which seems to fit the description of the circumstances.

  Q6  Chairman: I knew I could rely upon the Clerk of the House to provide me with the historical information which I had not been able to find out until this moment!

  Mr Sands: If you were not a tumultuous petition, you were a seditious meeting!

  Q7  Sir Robert Smith: Do you have any background as to why that was repealed or was it in the context that something had replaced it or was it just seen to me . . .?

  Mr Sands: I have no background to that. I think that probably it was just part of the general trend to get rid of acts which were regarded as quaint, old-fashioned and outdated.

  Q8  Sir Robert Smith: Sir Michael, we have touched on it already in terms of liaison, but is there a liaison prior to marches etc near the Houses of Parliament between the House authorities and the Metropolitan Police, or long-term demonstrations in Parliament Square?

  Sir Michael Cummins: We do work very closely with them and we make every effort to warn the Metropolitan Police if we know of any outside demonstration which is likely to threaten access, as they do exactly the same. That liaison with the police is very much the strength of our system here. The police are always very willing to listen and to do whatever they can to co-operate with us, but I am afraid to say that it appears that they are bound by current legislation which does not enable them to do as much now as they could formally, as you have described, Chairman.

  Q9  Sir Robert Smith: In the briefing, it says that the current Sessional Order does not actually give them any powers to implement, except the sort of general powers that they have.

  Sir Michael Cummins: Indeed. The current Sessional Order, under which I send to the Commissioner every year, is written in very general terms.

  Mr Sands: The legal position appears to be that the Sessional Order triggers off the Commissioner to give directions under this Act of 1839 and he still does that; he still does issue these directions. The trouble is that, to implement those directions, first of all you have to be sure that people who might be creating a disturbance or an obstruction within the designated area are aware of the directions; they have to be aware of them before they can be deemed to have contravened them. So, you actually have to go and tell them. Failure to comply with such directions is not an arrestable offence as I understand it, so this creates a double difficulty for the police and I think leads them to feel that it is not a power under which they can act.

  Q10  Chairman: Are you saying that obstruction of the public highway is no longer an offence?

  Mr Sands: No, I am not saying that. I am saying that the chain of direction that leads from the Sessional Order to the directions issued by the Police Commissioner to his local forces under the 1839 Act does not lead to any realistically enforceable powers. I think that is what the Commissioner will tell you.

  Q11  Sir Robert Smith: Obviously the Commissioner is going to give evidence, so that will help us.

  Mr Sands: If it is any help, I can just read to you a letter that the then Home Secretary, Jack Straw, sent to the Speaker in December 2000.

  Q12  Chairman: Please do.

  Mr Sands: He said, "You will be aware that the Sessional Order does not give the Metropolitan Police any powers over and above those they have under the statutory provisions relating to public order" and, by that, I think he meant the general statutory provisions.

  Q13  Mr Luke: I was glad to hear about this issue to do with tumultuous disorders. In a former life, I was an appointee of the Council, as a Justice of Peace and, before 1974, that would have conferred on me the title of Bailie, which would have meant, underneath the Scottish Act, as a local magistrate and I would have been able to read the Riot Act to you and, on that sort of occasion, if there was a large crowd under statute, I would ask you to disperse. However, we have never had that chance to meet in a previous life! We have been talking about Sessional Orders and their status and your veracity in the modern world. Is there any scope for improving these Sessional Orders to make them work more effectively or is there a case to remove them completely and, where appropriate, replace them with legislation?

  Mr Sands: You could, in principle, go through the ones which are not completely out of date because they are dealing with situations which could not arise now (which is the case with one or two of them) and you could modernise their wording and put them to the House in a somewhat more modern, if I dare use that word, form. However, you would still have the problem that they are motions put to the House without notice and they are debatable at a time when the House wants to get on to other things and it would still be the case that you could deal with all the issues that the Sessional Orders deal with in another way, either by standing orders or in some other way.

  Q14  Chairman: I want to press you on this and then I am going to ask Tony McWalter to come in. Iain Luke asked specifically whether it was necessary to introduce legislation in order to achieve what we want. So, is it legislation which is "in some other way", to use your phrase?

  Mr Sands: Are we talking about the Metropolitan Police Order here?

  Q15  Chairman: I am talking about the Sessional Orders with particular reference to guaranteeing open and ready access to Members and other important individuals who need to come to the Palace of Westminster. Are you suggesting and will the Metropolitan Commissioner suggest to us that legislation is the only way to resolve this matter? Is that what you meant?

  Mr Sands: Yes, it is. In the case of that particular Sessional Order about access to Parliament, that is exactly what my memorandum ends by suggesting, although recognising that I am sure the Home Office will advance difficulties about that in regard to human rights and the need to comply with the European Convention. I think that the present situation in Parliament Square is such a legal tangle that new legislation is the only way in which I can envisage us getting out of it.

  Q16  Mr Luke: Do you have legislation to replace the 1839 Act and would such legislation replace the 1839 Act as you make clear in your memorandum?

  Mr Sands: Yes, but it would not just do that. One of the things that my memorandum draws attention to is the problem caused—and the Serjeant will be able to say more about this because he has been more directly involved—by the split of responsibility for the central part of Parliament Square. The Speaker, as you know, is very agitated by the gentleman who has been there for almost years now with his banners up. He is actually occupying pavement which comes under the control of Westminster City Council and it was Westminster City Council that brought the case to try and evict him, unsuccessfully. The central part of the Square, the grassed area, which people occupy when there are much larger demonstrations, comes under the control of the Greater London Authority under the Greater London Authority Act 1999, under a clause which was added to the Bill at a very late stage in the House of Lords—I think it was on report or third reading in the House of Lords. The Commons hardly saw this clause and certainly did not have an opportunity to debate it—and it would appear from the debate in the House of Lords that what the Government were principally concerned about when putting this provision in and providing for the Greater London Authority to have a power of regulation over that central area was the possibility of it being occupied by street traders. You will know that there was a lot of concern about street traders in St James's Park and around Buckingham Palace and I think the fear was at the time that they might spill over into Parliament Square. Of course, that has not proved to be the problem at all.

  Q17  Chairman: What is the status of the grass area of Parliament Square? What is it designated as?

  Mr Sands: It is part of the hereditary property of the Crown but the control and regulation of it and the duty to maintain it are functions of the Greater London Authority under a section of the Greater London Authority Act and that situation is obviously quite difficult.

  Q18  Chairman: Serjeant, do you want to add anything?

  Sir Michael Cummins: If I could just add to what the Clerk has said on that score. The present occupant of Parliament Square, whom we all know very well I think, is very clever in that he does not actually occupy the grassed area. He now occupies the pavement area, which was the basis of the case brought by Westminster City Council to try and remove him from that area, which of course failed and the judgment in that case was brought by citing by the judge various elements of the Human Rights Act, for example, which allows him to make a reasonable demonstration in that area. The pavement, sadly, goes nowhere; it is not thought to be a blockage of access ways for other people and therefore he is on quite a tight but reasonable wicket in being there in that area at the moment.

  Q19  Mr McWalter: The question that I was going to ask was ten minutes ago, so it will throw us back a little, and it relates to the business initially when you were talking about these Sessional Orders being read out. It does seem to me that they are really awful but presumably one aspect when Parliament is convening for the first time in a new session is to have some reminder of the authority and the dignity of the Speaker. In other words, you would expect that the first thing to happen would be that the Speaker would say something which would sound dignified. It might remind Members of their duties and possibly might remind Members—as we have been discussing in this Committee, for instance—of the courtesies of debate where Members increasingly light in for their own part of the debate and disappear before they have even heard anybody else contribute to the debate, sometimes do not attend ministerial windups at the end and so on. There is potentially scope for the Speaker to say something that sounds authoritative, relevant and which actually involves him bringing the House to order for the next session. I would hope, Chairman, that we might find a way of having something done at that beginning session and a form of wording which is dignified and which is actually relevant and which does actually, as it were, constitute the House in its new proceeding. I do not know whether either of our witnesses has thought that that sort of mood would be appropriate.

  Mr Sands: It is not an idea that I had heard before, a homily by Mr Speaker.

  Mr McWalter: I do not mean a homily, I just mean simply that, not least, the Members of the House could be reminded of something relevant to the effective conduct of procedures, but also does involve him in being part of, as it were, what Badgett called "the dignified state" and I think it is quite important that we have some reference back in time in that way.

  Chairman: I think that Mr McWalter is making a very good point. What he is trying to establish is that the Speaker is standing up for the authority of the House and the right of duly-elected Members of the House to have at all times access to Parliament.

  Mr McWalter: I was not saying that particularly, Chairman.

  Chairman: And doing it in a way which actually provides the majesty if you like, the dignity of the occasion.

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