Erskine May online

Thomas Erskine May

"Parliamentary Practice" is the title of the late Thomas Erskine May's authoritative and influential work on parliamentary procedure and constitutional conventions affecting Parliament.  Rather than a set of rules, Erskine May is a description of how procedure in the House of Commons and House of Lords has evolved and the conventions that apply.

Now in its 25th Edition, Erskine May is published online via Parliament's website - HERE.  It continues to be available in printed form.

Thomas Erskine May himself was born in 1815 and became Clerk of the House of Commons in 1871.  He served in that post until shortly before his death in 1886.  His work
was first published in 1844 under the title A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament.

Online publication enables greater public understanding of Parliament and its processes.  The Speaker of the House of Commons has said - "Parliamentary practice and procedure does not exist in a vacuum.  It is in fact the lifeblood of the day to day work of Members, as recent months have starkly brought in to focus.  All too often Parliamentary rules are seen as a Byzantine mystery, only understood by a select few."

The online publication is to be welcomed though it is likely to lead to greater public questioning of the status quo and perhaps demands for constitutional reform.

Consider a statement from Erskine May such as - "The legal existence of Parliament results from the exercise of royal prerogative."  People will inevitably ask - Why isn't the existence of Parliament on a firmer basis giving it permanence as a central feature of a modern constitution.

The idea of proroguing Parliament in order to force through even a "no deal" Brexit has been topical recently - (e.g. previous post).  As Erskine May notes - "prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases."  All very well one might think but, in practice, it would not be the Queen making the decision.  Her Majesty acts on "advice" from Ministers and so, in reality, it would be the will of the Prime Minister which prevailed.  Who, in modern times in a democratic nation, can be content with a Prime Minister having a power to remove the very body to which Ministers are accountable.

We are also reminded of some of the more ancient aspects of the law such as the law of treason - (previous post).  For example,  para 1.6 tells us that - The Succession to the Crown Act 1707 declares it high treason for anyone to maintain and affirm, by writing, printing, or preaching, ‘that the Kings or Queens of this realm, by and with the authority of Parliament, are not able to make laws and statutes of sufficient force and validity to limit and bind the Crown, and the descent, limitation, inheritance, and government thereof’.   Erskine May appears to be out of date here because the provisions relating to treason which were originally in the Succession to the Crown Act  were repealed in the 1960s !   The Treason Act 1702 (included on the legislation database as The Act 1 Anne Stat. 2 1702) makes it treason to "endeavour to deprive or hinder any Person who shall be the next in Succession to the Crown" from succeeding. 

The same paragraph also reminds us of the important but archaically worded Bill of Rights - "The relationship between the Crown and Parliament had earlier been defined in the Bill of Rights, which declared, inter alia, that ‘the pretended power of suspending or dispensing with laws, or the execution of laws, without consent of Parliament, is illegal’, and that ‘levying money for or to the use of the Crown, by pretence of prerogative, without grant of Parliament for longer time or in other manner than the same is or shall be granted, is illegal’.   Those are important principles which became established in law as a result of the civil war and other turmoil of the 17th century but perhaps this is yet another example of a need for the rights and powers of Parliament to be set out in modern form.

A present day topical concern relates to the powers of parliamentary committees.  Damian Collins MP chairs the House of Commons Digital, Culture, Media and Sport Committee.  He has called for a power to impose fines on those who refuse to appear before committees - The Guardian 29 June.  The existing powers of parliament are set out in Erskine May Part 2.

Erskine May is invaluable and online publication is both welcome and enables greater transparency but let's not be surprised if serious questions start being asked.

Media:

The Times (£) - Erskine May online will help demystify Parliament - Parliamentary practice and procedure – so often portrayed in a rather cliched way as being the stuff of dusty books and bewigged clerks – has increasingly become the focus of broad public scrutiny and debate.

Express 2 July 2019 - Bercow faces backlash as Brexit-blocking 'Parliamentary Bible' now available FREE online.  A risible headline given that Erskine May is certainly not a book designed to block anything.  In March 2019 the Speaker pointed out that Parliament's own rules prevent repeated votes on the same subject - BBC News March 2019.  A third vote on the EU withdrawal agreement was nevertheless held following some further negotiation between the Prime Minister and the EU.