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[27]2. History of Westminster procedural tracts

2.1 The genre of procedural tracts

Through Redlich and Strateman we know that there exist only a limited number of independent tracts on Westminster procedure, from the medieval Modus tenendiparliamentum onwards. They form the textual corpus of this study.

The earliest tracts after the Modus (written in the 1320s) were: Thomas Smith, De republica anglorum, 1565/1583; John Hooker, The Order and Usage of Keeping of the Parlements in England, 1572; and William Lambarde, The Orders, Proceedings, Punishments and Privileges of the Commons House of Parliament in England, 1641 (written in the 1580s).

In the seventeenth century we distinguish three major tracts: Henry Elsynge, The Method of Passing Bills in Parliament, 1660 (written ca. 1625); William Hakewill, The Manner of Holding Parliaments in England, 1641; Henry Scobell, Memorials of the Method and Manner of Proceedings in Parliament in Passing Bills, 1656. Lexparlamentaria (1690), attributed to George Petyt, was published after the Glorious Revolution of 1688-9 and contained few new interpretations.

From the 1760s we have the anonymous Liverpool Tractate. The procedure codification of John Hatsell, inspired by the long-serving Speaker Arthur Onslow, resulted in a four-volume study, Precedents of Proceedings in the House of Commons; with Observations (1779-96, re-edited 1818). For French revolutionary assemblies of 1789 Mirabeau commissioned a tract from Samuel Romilly, published only in French as Règlemens observés dans le Chambre de Communes pour débattre des matières et pour voter (available in Mirabeau’s works of 1821). The same purpose lay behind Jeremy Bentham’s famous Essay on Political Tactics, originally written around 1790, published first in French by Dumont in 1816 and available in English only since the 1843 edition of Bentham’s Works.

The most famous of all procedural tracts is Thomas Erskine May’s A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament, published in 1844 and in editions revised by May himself until 1883 with slight variations of the title. Its later versions were re-edited by others and are an official part of British parliamentary procedure. Here I shall deal only with the first (1844), second (1851) and ninth (1883) editions, as well as with two booklets that he wrote (1849 and 1854), but I shall not follow the posthumous re-editions of his work.

[28]The works of his successors in the Clerk’s office – Reginald Palgrave’s Chairman’s Handbook (1878a) and Courtenay Ilbert’s Manual of Procedure in the Public Business of the House of Commons (first edition 1904) and other writings – were clearly written in the shadow of May. The same holds for Henry Lucy’s A Popular Handbook of Parliamentary Procedure (1880, quoted from the 1886 edition).

Commentaries on Westminster procedure from outside Britain from the nineteenth and early twentieth centuries also deserve to be better known. Gottfried Cohen’s Die Verfassung und Geschäftsordnung des englischen Parlaments mit Hinweis auf die Geschäftsordnungen deutscher Kammern (1861) is a tract particularly on this theme. In addition I analyse the chapters on procedure in W.F. Baring, L’Anglais chez lui. Les institutions politiques (1884), Julius Hatschek’s Englisches Staatsrecht (1905) and A. Lawrence Lowell’s The Government of England (1908). With this non-British procedural literature I hope to provide British scholars with a defamiliarising or Verfremdungseffekt perspective on their parliament.

In the period after World War I, debates on procedure did not play as prominent a role. From the first half of the twentieth century we have Gilbert Campion’s An Introduction to the Procedure of the House of Commons (1929, third edition 1958). It is an independent study of remarkable quality. Campion’s tract is complemented by his procedural essays from the early 1950s.

The newest comprehensive document is J.A.C. Griffith’s and Michael Ryle’s Parliament: Functions, Practices and Procedures of 1989, re-edited by Robert Blackburn and Andrew Kennon in 2003 (quoted as Griffith/Ryle 2003). Although written in a different style, it is comparable to the earlier procedural tracts in most respects.

The genre of procedural commentaries has become a crucial tool for understanding procedural practices themselves. This applies also in France, with Traité de droit politique, électoral et parlementaire, which was originally edited by Jules Poudra and Eugène Pierre in 1878, continued by Pierre from 1893 to 1924 and complemented with Suppléments. It has a semicanonical position in France (see Assemblée nationale website http://www.assemblee-nationale.fr/connaissance/droit_eugene_pierre.asp) and was reedited in 1989.

As Pierre emphasises in De la procédure parlementaire (1887: 2-3), the French parliamentary tradition relies on written documents on procedure, whereas standing orders play a much more limited role in Britain. This is a major reason why procedural tracts are indispensable for the understanding of parliamentary rules and practices in Britain. This also allows the authors of procedural tracts to intervene more directly in disputes over interpreting procedure, and they have always played a more or less direct role in political debates of the time.

[29]In the presentation of procedural tracts I have included a short discussion of political and constitutional changes achieved or intended during the period. These sections indicate the specific context in which the procedural tracts were written as rhetorical moves. I have tried to present the history of events as minimally as possible, assuming that the broad lines are well enough known, even for those of us who are not specialists in British politics.

2.2 A note on the origins of the English parliament and the Modus

The history of parliamentary procedural tracts depends on how the history of parliament is interpreted: since when has parliament become qualitatively distinct from other assemblies, and by what criteria?

The name ‘parliament’ seems to have been officially used for the first time in 1236 (Maddicott 2010: 157-158; Richardson and Sayles 1967: 748; for the origins of continental parliaments, see Kluxen 1983: 17). R. F. Treharne sees the early use of ‘parliament’ as referring to an occasion: ‘things are done “in” or “during” the parliament, or even “at” the parliament, nothing is ever done “by” the parliament during these years’ (1959: 81). The Provisions of Oxford of 1258 played a decisive role in turning these parliaments from an occasion into a regular institution: ‘What had hitherto been merely an occasion was converted into a political institution, and a vague, untechnical colloquialism became a clearly defined and precise constitutional term’ (ibid.: 84, see Maddicott 2010: 226).

R. H. Lord sees a ‘parliamentary’ interlude in Europe, between feudalism and absolute monarchy, from the thirteenth to the seventeenth centuries: ‘the power of the crown was then more or less extensively limited by that of assemblies, in part elective, whose numbers, […] were also regarded as representing in a general way the whole population of the land’. (Spufford 1967: 21).

The English parliament differs from its continental counterparts by the fact that it never became an estate diet, such as the États généraux in France, the Sejm in Poland, the Staaten General in the Netherlands or the Riksdag in Sweden (see Chrimes 1936: 81-126; Cam 1962; Koenigsberger 1962). Chrimes has identified the bicameral character of the British parliament as a development of the fifteenth century, when the meaning of ‘House of Commons’ shifted from a locative to an institutional sense: ‘We are thus, seemingly, bound to recognise that by the end of the century the commons had developed sufficient corporate unity and consciousness to be justly conceived as a House, we need to remember that this corporate organisation was still rudimentary and hardly independent’ [30](Chrimes 1936: 130). In the early ffteenth century also, the assent of the two Houses ‘was becoming more than a matter of words’ (Brown 1981: 129).

J. G. Edwards links together taxation, representation and the full powers of parliament to the years 1283-1297 (during Edward I’s reign): ‘When the demand for the full power was defined and grew into common form, the king and his lawyers in order thereby to secure grants of taxation which should, through the consent of fully empowered representatives, be legally binding upon the communities of the shire and borough which they represented’ (1934: 142). A. L. Brown writes that in the late fourteenth century the basis of parliamentary strength was the ‘right to assent to taxes’ (1981: 125; for parliament’s assent to taxes under Henry VI in the mid- fifteenth century, see Wolffe 1958: 71-81).

The free mandate originated in England in the late thirteenth century as a demand for plena potestas for those who attended parliamentary assemblies (for the concept see Müller 1966). A corollary of plena potestas is that the decisions of parliamentary assemblies are binding on the entire country (see Edwards 1934, Post 1943). This marked a difference between parliamentary and estate representation and indicated an increase in parliament’s political powers to deliberate on legislation, foreign policy, and the constitution, as well as in its ability to exercise more than financial control over the monarch and the royal court, for example, via impeachment (on the impeachment of the Duke of Suffolk in 1450, see Fryde 1970: 9).

A remarkable step was the move from the King’s Parliament to the Kingin-Parliament, used for the first time in the Reformation Parliament of 1534 (Kluxen 1983: 42). Parliament was thus regarded as representing the entire country and changed from being an occasion on which grievances were expressed to being an instrument of government policy, requiring greater justification for its laws and the formation of committees. The sovereignty of the king was therefore reduced to that of a King-in-Parliament (ibid.: 44). Sir Thomas Smith in De republica anglorum, written in the 1560s, clearly formulated the doctrine: ‘The most high and absolute power of the realme of Englande, is in the Parliament’ (Smith 1583: II.1).

However, we do not have any reliable description of the procedures and practices of Westminster in the period following its regularisation. What we do know is that bills replaced petitions in the early fifteenth century (Redlich 1905: 33; Chrimes 1936: 220-221). Parliamentary terms such as amendment, engrossing, enrolment, enactment and proclamation were already used in this period (Chrimes 1936: 218-231). Redlich considers that the parliamentary privileges of free speech and freedom from arrest were accepted already in the fourteenth century (Redlich 1905: 37-39). In contrast, Campion maintains that the English House of Commons was originally not at all a deliberative assembly:

[31]The House of Commons had, to start with, no official right of debate. In Parliament it appeared as a silent body, expressing its pleasure through the voice of the Speaker. When it first withdrew to the Refectory of the Abbey, it was for the purpose of informal discussion. Its return, 1547, to the Palace of Westminster as a body with the privilege of freedom of speech was a measure of success with which it has solved the essential problem of debate – that of focussing and expressing the will of a numerous body […] which, in spite of all modern technical resources, still baffles most parliamentary assemblies. (Campion 1929: 11)

The famous Modus tenendi parliamentum is thought to have been written around 1320. Rather than being an exposition of the modes of proceeding of that time, it is a normative treatise (see Clarke 1964: esp. 314-347). The Modus sought to increase the representativeness of parliament and its powers against the arbitrary will of the king, although the measures it had to do that with were rather indirect. The Modus was also keen to regulate ceremonial procedures, such as the opening of parliament, as well as the administration and personnel needed for such ceremonies. A crucial aspect concerns how parliamentary time was regulated and how items on the agenda were prioritised.

The Modus nonetheless served as a model for several sixteenth and seventeenth century tracts, as seen even in their titles and composition, and it was also republished during that time in several English translations. The tracts of John Hooker, William Hakewill and Henry Elsynge are indebted to the Modus, although many of the topics and controversies they take up were unknown at the time of the Modus (See Strateman 1937: xxx-xxxii, xiv-xlix).

A previously unpublished chapter of Elsynge’s tract The Manner of Holding Parliaments in England under the title Expedicio billarum antiquitas, deals with the procedural practices of medieval England. The volume was edited by Strateman Sims (1954), who judges it ‘a good survey of medieval parliamentary practice as it was understood by a careful seventeenth-century scholar’ (Strateman Sims 1954: l).

2.3 Tracts from the Elizabethan era

The increase in parliamentary powers, the regularisation of parliamentary sittings and parliament’s struggles with the Tudor monarchs seem to have contributed to the writing of several tracts on parliamentary procedures and practices. In the Elizabethan era (1559-1603) three fairly different procedural tracts were written.

Sir Thomas Smith (1513-1577) was a Cambridge scholar, a diplomat and a member of parliament in the early years of Elizabeth I. His extensive study of the regime, written in Latin as De republica anglorum in the 1560s, when he was serving as an ambassador, was published posthumously in 1583 as The [32]maner of governement or policie of the Realme of Englande. The book is well known, by its Latin name, as one of the major documents of the ‘monarchical republic’ of ‘commonwealthmen’, to use the term coined by Patrick Collison (see also McDiarmid (ed.) 2007; Allen 1928: 262-268; Peltonen 2002; Burgess 2009: 94-95). The extensive second chapter of Book II, ‘The forme of holding the Parliament’, can be included in the genre of procedural tracts. In the literature on Smith as a political thinker, his work on parliamentary procedure is hardly discussed at all.

John Hooker, alias Vowell (c. 1527–1601), the uncle of Richard Hooker, experienced the confused practices of the Irish parliament as well as the wellordered practices at Westminster as a member for Exeter in 1571. He wrote the tract, The Order and Usage of Keeping of the Parlements in England. He was, in the words of his biographer Snow, ‘the first Englishman to provide his contemporaries with a reasonably accurate insider view of the “high court of Parliament” – its composition, structure and inner workings’ (Snow 1977: 87). The two versions of the tract are identical except for their ‘epistles’, to his respective Irish and Exeter audiences. The first is printed with the date 1572, the second with 1575. I will use these dates, although Snow claims that ‘the Exeter edition was printed first’ (ibid.: 36).

Markku Peltonen has emphasised Hooker’s republican tendencies, interpreting his Exeter as a kind of commonwealth in its own right (see Peltonen 1995: 57-59), based on the epistle of Order and Usage. Snow, for his part, detects three conceptual layers in Hooker’s tract: ‘Hooker perceived parliament as the English version of the Roman senate and the elected MPs as senators’ (Snow 1977: 47); however, he ‘perceived a thread of continuity from the early advisory assemblies of the Anglo-Saxon sovereigns to the Elizabethan ‘high court of parliament’’ (ibid.: 48). Finally, ‘as an observant Englishman who had participated in Elizabethan parliaments, Hooker believed that the English parliament was unique’ (ibid.: 49). This ambiguity is strongly present also in the text of Order and Usage.

Hooker explicitly states his intentions for writing the tract. He writes in the 1572 epistle: ‘Which douts concerning the orders, usages, rites and directions of Parlement (none then preset hauing the certain knowledge thereof) were left in suspense and not resolved. Whereupon I made promise at my returne into England: to procure a perfect instruction of the order of Parlements there used, and to send them hether to remain for a perpetuall direction of such Parlements as henceforth ar to be used in this land’ (Hooker 1572: 8). When he was elected to represent Exeter at Westminster, he kept his promise, ‘wherefore diligently I did observe, consider and mark all maner of orders, usages, rites, ceremonies and all other circumstaces, which I either sawe with eye, or found regestred among the records of that assembly’ (ibid.:). Then he refers to the recording of precedents and to English kings of the past with ancient and biblical comparisons.

[33]Hooker realised that there were no systematic records of the modes of proceeding used in parliament. It did have, however, an unwritten procedural tradition, largely unknown to outsiders, which combined the unique features of parliament with the traditions of older senates and assemblies. Hooker recognised the value of such procedures: ‘if a Parlement which directeth orders to others be disordered it self, how great is that disorder? if the light which should give to the others becomes darknes’ (ibid.: 9-10). It is for the purpose of helping the Irish to keep their parliament in proper order that Hooker declares: ‘I have collected as perfet an order as I could to of the orders of the Parlements of England, which I thought it be my bounden dutie to offer and present to your good Lordship [Henry Sidney, KP], now inprint for the further confort of all others’ (ibid.: 10). The genre of these first procedural tracts is that of advice-books.

The 1575 epistle is dedicated to ‘the Mayor and Senators of the ancient and honorable city of Exeter’ (Hooker 1575: 1), thanking them for the honour of having represented the city in parliament, which he praises for: ‘wholsome lawes are made, and good order kept and observed, and so long doo common welths florish; as when princes do rule and governe by law, and people loyally obeying liue under law’ (ibid.: 4). Still, Hooker is astonished that the regulations of parliament are not better known: ‘And for as much as the orders, usages and customs of the Parlements of this Realme, are for the most part, and to most men hidden and unknown, and yet moste expedient and necessary, that none should be ignorant of them: I have thought good upon considerations to make a collection of them,’ including the differences between past and present practices (ibid.: 8). Addressed to the city of Exeter, the collection is written with a view to future members of parliament (ibid.: 9). The main values of Hooker’s tract are thus that it gives advice and information to the public.

William Lambarde (1536-1601) served as MP apparently in 1563-1567 (for doubts about the identity of the author of the tract, see Ward 1977: 34-36; also Neale 1924b, and the entry on Lambarde in the Oxford Dictionary of National Biography). His Orders, Proceedings, Punishments and Privileges of the Commons House of Parliament in England was written around 1584 but only published in 1641. It is indebted to both Smith’s and Hooker’s works (Ward 1977: 15-18, 25, 39, 42). Lambarde’s tract is known in several manuscripts. Following Strateman, I use the ‘Harvey Miscellany’ edition, complemented with Ward’s critical edition, Notes on the Procedure and Privileges of the House of Commons.

The tract concentrates more strictly on the procedural core of activities in the House of Commons than does Smith’s or Hooker’s. Ward summarises his interpretation of the tract: ‘Lambarde’s Notes seem centrally concerned with what concretely promoted mutual respect and openness among the three functioning elements of the Parliament of his day’ (Ward 1977: 29).

[34]All this gives us hints about the formation of Westminster parliamentary procedure. It was formed through the accumulated decisions and conventions concerning it, a process in which it became more different from other assemblies than is generally realised. The fact that bodies as diverse as the Irish parliament and the Exeter city assembly could both use parliament as a model points to the singularity of parliament’s procedures. Smith, Hooker and Lambarde seem to have been the first members to collect together their parliamentary experiences for discussing the procedure.

By the second half of the sixteenth century the English parliament had developed rules, customs and conventions of its own (see Dean 1996). The procedural tracts were making parliamentary practices known beyond a small circle of insiders and marked a step towards opening up parliament and establishing a relationship to the public that was different from the arcana imperii of the court and the Privy Council.

Catherine Strateman stresses the difference between the Modus and the tracts of Smith and Hooker: ‘Yet in these two early tractates we observe the existence of a parliamentary procedure not even suggested by the medieval Modus. The description of the speaker, at once the servant of the House and the embodiment of its power and dignity, the fixed procedure on bills, and “the marvelous good order used in the Lower house” in debate, show that the House of Commons had long possessed – for there is no suggestion of innovation in either of these accounts – essentially the same form of proceeding as that described in the Liverpool Tractate’ (Strateman 1937: xxxvi). Her main point is that the distinct procedures of the Houses of Parliament can be traced back to the tracts of the latter part of the sixteenth century.

The first tracts were ‘pedagogical’ advice-books for a parliament in which members, having no clear models and only incomplete records from the past, therefore had to learn by doing. The focus on procedure contributed to the strengthening of parliamentary powers. By developing rules and conventions of its own, parliament increased its distance from everyday ways of discussing and deciding issues. The quiet and incremental growth of parliamentary procedures also strengthened parliament’s power relative to the crown and to the crown’s officials, and a distinct parliamentary sub-culture was fostered, particularly with respect to the way items on the agenda were processed.

This proceduralism accentuates parliament’s link to what Skinner refers to as Renaissance rhetorical culture (1996). To treat items from opposite perspectives and debate them pro et contra can be regarded as a heritage of classical deliberative rhetoric. Smith’s formulation, in which the ‘mervelous order’ of parliament is created and upheld by debate itself, indicates that during the Renaissance revival of classical rhetoric, parliament transformed the rhetoric of deliberation and gave it a parliamentary colour (see Mack 2002; 2008; Peltonen 2013).

[35]2.4 Source-based tracts and the struggle with the Stuarts

For an understanding of the seventeenth century tracts on procedure, a short account of the main conflicts between parliament and the king during the reign of James I (King of England from 1603) is needed. The struggle was part of a broader European tendency to strengthen monarchies at the cost of parliaments. A further radicalisation of the struggle on the status and powers of parliament took place with Charles I (on the throne from 1625), especially during his refusal to summon parliament from 1629 to 1640.

Soon after the accession of James I of Scotland to the English throne, parliament, growing suspicious of his projects, agreed upon a document known as the Apology and Satisfaction (1604). It was never submitted to the king, but it emphatically affirmed parliamentary freedom of speech, free elections and freedom from arrest, and illustrated parliament’s understanding of its own powers and privileges. These parliamentary freedoms remained contested under both James I and Charles I (see Hexter ed. 1992).

The king’s right to both summon and dissolve parliament was a major form of parliamentary dependence. Charles attempted to rule without parliament for eleven years. The initiators of the Triennial Act had found statutes on annual parliaments from as early as the reign of Edward I. In the parliament of 1640, a committee approved the automatic summoning of parliament every three years, and by February 1641 many royalists also supported the Triennial Act. Finally Charles acceded to the change (for the debates, see Yerby 2008: 149-176). The Act’s three-year rule for dissolved parliaments ‘curtailed one of the monarch’s oldest and most important prerogative powers,’ as Adam Tomkins writes (2005: 88). After the Restoration the Triennial Act was repealed, in 1664, but after the Glorious Revolution it was passed again, in 1694 (http://www.british-history.ac.uk/report.aspx?compid=46421), ‘since which time there has been a Parliament every year’ (Tomkins 2005: 88).

In 1642 parliament broke with the King-in-Parliament concept. The Nineteen Propositions of parliament to the king affirmed parliament’s supremacy. This marked a major step against the royal court in favour of a ‘great and supreme council’. Henry Parker writes: ‘That the Sovereign power resides in both Houses of Parliament, the King having no negative voice. This power is not claimed as ordinary; nor to any purpose. But to save the Kingdom from ruine and in cases where the King is so seduced that He preferres dangerous men, and prosecutes His loyall subjects’ (Parker 1642: 45). Parker’s view refers to parliamentary supremacy as a special achievement of the early years of the Long Parliament.

The later years of the Republic and the Protectorate made clear that parliament by itself could not act as the government. The inability to make a distinction[36] between the two shapes the later relationship between parliament and government.

The republican period until the Restoration of 1660 was an important period for the composition and publication of procedural tracts. As I have mentioned, Lambarde’s Orders was first published in 1641, and also Elsynge’s, Hakewill’s and Scobell’s works were written in opposition to the royalist politics of James I and Charles I. An anonymous volume from 1628, The Privileges and Practices of Parliaments in England, consists mainly of quotes from precedents and does not discuss the procedures of debate.

The tracts of Hakewill, Elsynge and Scobell are the work of parliamentary professionals, officials or long-term members. Hakewill was a politician opposed to royal supremacy, and the works of the clerks Elsynge and Scobell can be seen as ex officio defences of parliament through demonstrating its procedural autonomy and singularity. All three tracts also offer a more detailed exposition of existing procedures and cite precedents based on the records of parliament.

William Hakewill (1574-1655) was a legal antiquarian and a long-term member of parliament. Although he was briefly briefly a court official attached to the queen, he was critical of James’s and Charles’s policy towards parliament and he was even imprisoned by James in 1622 (see Colclough 2005: 178). In 1641 he published The Manner of Holding Parliaments in England, an appeal to the ‘ancient constitution’ in parliamentary procedure, contrasting practices during the reign of Edward the Confessor at around the time of the Norman Conquest to those of 1640, although the bulk of the original text appears to have been written earlier, in 1611 (See Strateman Sims’s note in Hakewill 1939: 90). The historical part, drawing upon formulae from the Modus, belongs to the tradition of defending parliament by projecting its procedures to the past, now frequently denounced as an anachronistic manner of argument (see Pocock 1957). In the same year an unauthorised book was also published in Hakewell’s name; he later included it in an authorised version entitled, The Manner How Statutes Are Enacted in Parliament by Passing Bills. Strateman Sims also published a short tract by Hakewill entitled, The Speaker in the House of Commons (1939).

Henry Elsynge, Sr (1577-1635) was a Clerk of the House of Lords. Around 1625 he wrote a tract on parliamentary procedure which was later edited and in 1660 published by his son, Henry Elsynge, Jr, a Clerk of the House of Commons, with the title The Method of Passing Bills in Parliament. The volume dealt mainly with the House of Lords, but is systematically based on legal precedents (for background, see the Introduction by Bing to the 1972 edition). In addition to Expedicio billarum antiquitus, Strateman Sims published an additional fragment on medieval England, The Modern Forms of the Parliaments [37]of England (see Strateman Sims 1948), which complements the Method in its interpretation of House of Lords procedure.

Henry Scobell (1610-1660) followed Henry Elsynge Jr as Clerk of the House of Commons in 1649, during the Long Parliament, and also served in the Barebones Parliament under Cromwell. His tract, Memorials of Method and Manner of Proceedings of Parliament in Passing Bills, was published in 1656 and dealt with the precedents and practices of parliament in the prerevolutionary period. From my perspective, Scobell’s tract is definitely the most interesting of the seventeenth century tracts. Scobell eventually also wrote a short tract called Power of the Lords and Commons in Parliament, which was published in 1648 and republished in 1999. In the struggles during the Republic and the Protectorate, Scobell was associated with the Cromwellian faction (see http://mercuriuspoliticus.files.wordpress.com/2008/01/licensed-newsbooks-1649-1650-final-version.pdf), but of this there are hardly any signs in the tract.

Hakewill’s Manner How Statutes are Enacted presents in its preface the background and intentions of the tract. He refers to the Journals of the Commons in the form published around 1610. Referring to his own service in several parliaments, Hakewill declares: ‘I read them all through, and whatsoever I conceived so tend to the rule of the house […] I reduced under apt Parliamentary Titles’ (Hakewill 1641b: A4). He emphasises the special care that he took in writing about the passage of bills, since they are ‘the daily and most proper worke of that house’ and that he had not proposed ‘any thing for a rule, for which I have not touched the authority of the Journall’ (ibid.). He relates that under James, the Lords ‘appointed a Committee for the collecting of the rules and orders of that house’ (ibid.: A5), which evidently refers to the background to Elsynge’s tract on procedure. Hakewill refers to Elsynge as ‘my worthy friend’ (ibid.: A6). Hakewill greatly regrets that no similar official collection of the rules and orders exists for the House of Commons and understands the publication of his own work as a modest measure to compensate for this deficiency.

If to this care of perfecting of the Journalls of the house of Commons, there were some provision made by that house, for the sake preserving of them, answerable to that which the Lords have, whose Clarke hath a house belonging to him, and his successors, where all their Records are kept to posteriority, the Journalls and Records of the Commons house, would now (as now they may) come to the hands of Executors and Administrators, and being removed to and fro in hazard of being lost, as is well knowne that some of them have beene, and that in passages of the great moments, whereby the Common wealth may receive great prejudice of it be not prevented, which my humble propositions, I do (together with this Treatise) in all humility submit to the great wisdome of that honourable assembly, by whole favor this is published. (ibid.: A7-A8)

[38]Hakewill’s fear that the Commons’ records might be left to “executors and administrators” who would not carefully preserve them proved to be well founded. He also implies that knowing the precedents of the Commons was of major service to the Commons of his day, threatened as it was by contempt on the part of the crown.

The tracts of Elsynge, Hakewill and Scobell indicate a higher level of professionalisation in writings on parliamentary procedure than we have seen before. Their professionalism was supported by both Houses of Parliament, and members of parliament and parliamentary staff were their primary audiences. The tracts no longer attempted to popularise the goings-on of parliament, but rather to give authoritative detailed descriptions of current procedures and their principles. Whereas Elsynge’s writing is mainly descriptive, Hakewill and Scobell in their own ways try to go beyond a simple description of practices and to render intelligible a broader concept of parliament and parliamentary, one founded upon more general principles.

All three tracts mark a formalisation of parliamentary procedure. For example, the introduction of motions and bills onto the agenda is now seen as requiring a procedure of its own, including ample preparation and cooperation with the Speaker and parliamentary staff. The three readings have become a part of the multi-stage journey of debates that distinguishes parliament from other assemblies, as well as from bodies that handle academic, legal or ecclesiastical disputes. Still, the three readings have a history of their own and can themselves be modified by a decision of both Houses of Parliament in cases of importance and urgency.

2.5 Procedural tracts after the Glorious Revolution

After the Glorious Revolution, parliament sat annually, but the new Triennial Act regulated the maximum length of the parliamentary term to three years (http://www.british-history.ac.uk/report.aspx?compid=46421). This was a new step in the regularisation of parliament and the renewal of its membership in regular elections. In 1716, at the beginning of Walpole’s government, the Triennial Act was replaced, after heated disputes, by the Septennial Act (http://www.legislation.gov.uk/apgb/Geo1St2/1/38).

In practice this Act contributed to the professionalisation of parliament, and thus increased its powers over the government and its apparatus. John Hatsell notices how the Speaker, Onslow, soon realised this aspect: ‘Mr. Speaker Onslow was frequently heard to declare: “That the passing of the Septennial Bill formed the æra of the Emancipation of the British House of [39]Commons, from its former dependence on the Crown and the House of Lords”’ (Hatsell 1818/II: 384).

One of the consequences of the Glorious Revolution was that the new regime, based on the Bill of Rights (1689), the renewed Triennial Act (1694) and the Act of Settlement (1701), gave up the ideal of governing parliament. The impetus to control the government came about through the government’s permanent need to fund its activities, which was only possible through the consent of parliament. D. L. Keir relates the development of a parliamentary monarchy to the foundation of the Bank of England in 1695, and to its 1709 ‘statute with the issue of Exchequer’s bills’. These measures made it possible ‘to consolidate parliamentary control of finances’ (Keir 1937: 275). The centrality of the budget process made parliament above all an organ of criticism and the controller of government motions.

The Walpole government was, in Keir’s words, ‘constituted on a recognised basis of political solidarity, collective responsibility, or acceptance of common leadership’ (Keir 1937: 320). An inner cabinet or conciliabulum was formed in the late Walpole years (ibid.: 332-334; also Kluxen 1983: 85-88). The converse of forming a cabinet with a ‘First’ Minister was the recognition of the opposition as a legitimate part of parliamentary politics. The opposition offers itself as an alternative government – ‘His Majesty’s alternative Government’ (see Kluxen 1956: 169).

During the Walpole era the opposition invented a procedural instrument of political expediency, the vote of no confidence. Samuel Sandys’s motion in the House of Commons on 13 February 1741 ‘was unprecedented,’ writes Tapani Turkka in his major study of this motion and on John Locke’s legacy on both sides of the struggle (Turkka 2007: 35). A new procedure had been invented for testing the government’s parliamentary majority and for replacing the incumbent government, although the royal veto against such a move lasted until the 1832 parliamentary reform and the 1835 recognition of parliamentary government.

By the end of Walpole’s government, many of the tools of what we now call a parliamentary regime were already in place. Still lacking was parliament’s power to nominate and dismiss cabinet ministers, which was the instrument that George III used to restore royal powers after he ascended the throne in 1760.

The Glorious Revolution meant in many respects a return. The seventeenthcentury procedural tracts were still used as authoritative expressions of current procedure. Strateman insists that ‘during the period between the composition of Scobell’s tractate and that of the Liverpool Tractate [in the 1760s] the changes seem to have been very slight […] in the form of procedure, though obviously the position of the House itself changes greatly’ (Strateman 1737: xlii).

[40]One tract was published immediately after the Glorious Revolution, namely Lex Parliamentaria: Or a Treatise of the Law and Custom of the Parliamentary England, attributed to either George Petyt or George Philips. Strateman regards it as ‘a work on Parliament made up almost entirely of citations from them and a few other sources’ (Strateman 1937: lviii) and recognises it as a mere ‘bibliographical guide’ (ibid.: lix-lx). Strateman has even less respect for The Original Institution, a tract published in 1707 under the name of the late judge Matthew Hale (ibid.: lx).

The Lex parliamentaria is, in its own words, a ‘compendious […] and useful’ book of advice for MPs (Lex Parliamentaria 1690: A.4), to which they can have recourse so that they do not need to rely on memory. The author is perhaps the first to defend procedure explicitly as a way of protecting parliament and its members from the royal prerogative. ‘All Members ought to be thoroughly skilled in Parliamentary Affairs, to know their own Laws and Customs, their Powers and Privileges, that they may not suffer Invasions to be made on them, by what plausible Pretences soever’ (ibid.). The author aims to provide the public with a tool to ‘observe and know the admirable method of Parliamentary Proceedings; the Exactness and Decency of their Ordes; the Wisdom and Prudence of the Customs; the Extent of their Powers, and the Largeness of their Privileges’ (ibid.: A6). The point is thus less about citizens’ control of parliamentarians than about the teaching of parliamentary practices as a political model.

Catherine Strateman published the Liverpool Tractate, originally written around 1762/63 for the newly elected MP Charles Jenkinson, later Earl of Liverpool. Its author was an older MP, according to Strateman probably George Grenville, who had been a member of the Commons since the early 1740s. It served as a ‘parliamentary guide’ for Jenkinson, whose star had rapidly risen as one of the ‘King’s friends’ in the 1760s (Strateman 1737: xi-xv). Strateman sees its modest aim as being ‘a description of the daily and routine procedure of the House in legislation’ (ibid.: xviii), helping ‘to fill the gap between Petyt and Hatsell’ (ibid.: xi).

2.6 John Hatsell’s codification of procedure

Slightly later than the Liverpool Tractate, but in the same broad parliamentary context, we can detect the beginnings of the first systematic attempt to codify parliamentary procedure on the basis of precedents, namely John Hatsell’s (1733-1820) Precedents of Proceedings in the House of Commons; with Observations, published originally from 1779 to 1796, with the last edition (which is mainly used here) appearing in 1818. Inspired by the codification practices of [41]Speaker Arthur Onslow during his long tenure (1727-1761), Hatsell, the assistant Clerk of the Parliament from 1760 (still under Onslow’s speakership) and Clerk of the Parliament from 1768 to 1797, had earlier edited the volume, A

Collection of Cases of Privilege of Parliament From the Earliest Records to the Year 1628 (1776).

Hatsell’s magnum opus consists of four volumes, the first dealing with the ‘Privileges’ of parliament, the second with ‘Members, Speaker &c’, which is the main volume on the House of Commons, the third with the ‘Lords and Supply’, and the final one with ‘Conferences and Impeachment’. In the preface to the first edition of Volume II (1781), Hatsell expresses his gratitude for having been given access to ‘the notes and observations of Mr. Onslow’ (Hatsell 1818/II: vi).

Hatsell’s style of presentation typically includes cases of precedent complemented with his own observations. ‘This Work ought therefore to be considered only in the light of an Index, or a Chronological Abridgment of the Cases to be found upon this subject’ (Hatsell 1818/I: viii; see also 1781: viii; 1818/II: v). The observations ‘are designed merely to draw the attention of the Reader to particular points, and, in some degree, to assist him in forming his own opinion upon that question’ (1818/I: 7-8). In the 1818 preface, Hatsell thanks the former Speaker of the House of Commons, Charles Abbot, for his revision of the volume (ibid.: v-vi). The length of the volume has increased, with a larger number of precedents and more observations, but the key points of the second volume were already present in the 1781 edition.

In the preface to the third volume, Hatsell declares that he would have been interested in discussing the ‘great political questions’ that his work on procedure opens up, but he found it impossible in this kind of work. He asserts that his work is a contribution to the understanding that ‘government, even in the earliest periods, was founded in principles of freedom’ (Hatsell 1818/III: vi). With a reading concentrating more on ‘observations’ than on precedents, we glimpse the political dimensions of Hatsell’s work, particular in relation to Onslow’s defence of parliament in an age when the powers of the government were ascendant.

In the preface to the fourth volume, originally published in 1796, Hatsell notes that he has, in some instances, ‘been induced to deliver his opinion on questions of Parliamentary Law, more decidedly, than perhaps it was prudent for him to have done’ (Hatsell 1818/IV: v). He defends the term ‘Parliamentary Law’ or ‘Law of the Parliament’, neither of which had been used in any previous tract. He quotes Edward Coke: ‘It is by the Lex et consuetudo Parliamenti, that all weighty matters concerning the Peers of the Realm, or Commons in Parliament assembled, ought to be discussed, adjudged, and determined’ (ibid.: vi).

This view renders the work more ambitious than his earlier description of ‘an Index of the Journal at large […] intended to assist those Members of Parliament[42] or other persons, who may be desirous of consulting the original records on these subjects’ (ibid.: vii). Hatsell claims with characteristic modesty: ‘Perhaps it may not be too presumptuous to hope, that these researches, and the precedents here brought forward, may, in some degree, tend to give additional strength and support to those maxims and principles, which are the foundation of the British Government’ (ibid.: vii-viii). One aspect of this support might be seen in the adoption of the adjective ‘parliamentary’ to characterise certain activities, including aspects of the government itself.

Hatsell’s tract follows Onslow’s line in defending parliament against the strengthening of the government, the prime minister and the administrative machinery. At the same time, Hatsell’s volumes remain strangely unconcerned with the challenges brought about by parliamentary politics itself.

To emphasise continuities in procedure, as the Porritts, Redlich and Strateman do, tends to overlook the fact that by the second half of the eighteenth century the Westminster parliament had become the epitome of a successful parliament, holding annual meetings and playing a key role in the politics of the country. The Hatsell volumes and the Liverpool Tractate, for their part, affirm both the continuity of the major procedural practices and the significance of the rise of parliaments as central political institutions, not only in British, but also in European politics.

2.7 Tracts for the French Revolution: Samuel Romilly and Jeremy Bentham

The status and prestige of parliament served as a model not only in Britain but also elsewhere for how to organise debate in meetings, associations, clubs, organisations and debating societies created at that time. ‘Parliamentary’ as an adjective applied to debate or to procedure in general became a standard by which to judge the practices of other institutions besides parliaments.

The summoning of the French États généraux by Louis XVI in September 1788 was an occasion for French reformers to consult English authorities and present Westminster procedure to a French audience. Two English legal thinkers responded to their enquiry, namely Samuel Romilly and Jeremy Bentham.

In 1789 the British legal reformer and later MP (1812-1818), Samuel Romilly (1757-1818), wrote a book of advice for the members of the French Constituent Assembly, at the request of Mirabeau. As I have already mentioned, the tract is available only in the French version Règlemens observés dans le Chambre de Communes pour débattre des matières et pour voter, in the selected works of Mirabeau published in 1821 (see Strateman 1937: ix-x). As with the Liverpool Tractate, Romilly’s work was written for inexperienced parliamentarians,[43] and it neither considers e.g. precedents nor directly mentions controversies about procedure.

Romilly’s tract is in many respects an updated presentation of British practices, without any reflection on the political principles underlying procedures. Footnotes apparently written for a foreign audience explicate English terms such as the ‘motion’ (Romilly 1821: 432), or describe in detail the way in which voting (by division) is organised (ibid.: 445-446). Romilly explicitly cites the rule that every member has the right to interrupt a speech by crying ‘Order’, that is, to give notice to any member who offends the king or a member by calling on the Speaker to force the member to abide by the rules (ibid.: 433).

Jeremy Bentham (1748-1832) was a well-known critic of the British legal system, the author of Fragment on Government (1776) and Introduction to the Principles of Morals and Legislation (1789), among other works. The tract, Essay on Political Tactics, which Bentham was asked to write for the États généraux, applies his normative critique of existing regimes to parliamentary procedure. Indeed, Bentham’s Tactics, though it differs widely in style and thematic from the other procedural tracts considered here, can still be treated as part of this series.

Bentham’s immediate parliamentary context is the same as that of Hatsell and Romilly. For him an important change took place in 1771, when Westminster allowed the publication of parliamentary records. This led first of all to the publication of debates by Cobbett and later, Hansard, although these reports were for a long time based on newspaper reporting, which is a far cry from verbatim transciptions. Publicity plays a stronger role in Bentham’s Tactics than in any of the other tracts.

Bentham’s project concentrated on internal procedures and left out ‘constitutional’ questions as far as possible. The news that the États généraux had been summoned for the first time since 1614 prompted Bentham to compare Westminster procedure with the practices of some of the French provincial assemblies that were summoned in the second half of the eighteenth century.

The editors of Bentham’s Collected Works declare that Bentham’s essay was probably the first attempt ever made ‘to theorize broadly about parliamentary procedure’ (James/Blamires/Pease-Watson 1999: v). Bentham aims at ‘the whole theory of the discipline and mode of procedure most proper to be observed in all sorts of political assemblies’ (Bentham 1999: 2).

A considerable part of the Tactics was completed in early 1789, but it had not yet been translated when the Estates met. By June 1789 Bentham feared that the Tactics might have ‘lost its momentum’ (Bentham 1999: xxii). After receiving comments from friends and colleagues on the confusing proceedings of the Assemblée nationale, he was no longer interested in publishing the work. [44]Jean Garran de Coulon unsuccessfully proposed in the Legislative Assembly that they should commission a work from Bentham to coordinate procedure.

In January 1791 the preface, together with Chapters V and VI of the later editions, were printed and privately circulated. Etienne Dumont’s translation, published in 1816, Tactique des assemblées délibérantes, was the first published version of Bentham’s work, and a slightly revised version was published in 1822. Dumont’s 1816 French edition of Bentham’s Tactics was used as the basis for the procedure of the Argentine Chamber of Deputies in 1824. According to the 1999 critical edition, Dumont carried out his work with almost no help from Bentham himself. The originals of Bentham’s drafts have been lost, and the 1843 Bowring edition in Bentham’s Works, provided by Richard Smith, probably relied on a back-translation of the Dumont edition. For the critical edition of 1999, the Dumont and Smith editions still served as the basis (see James/Blamires/Pease-Watson 1999: xii-xvi). For my purposes, the editorial differences between Bentham 1843 and Bentham 1999 are of secondary value, and I mainly stick to the 1843 edition.

If ‘theory’ refers to a criterion of generality that transcends commentary on existing British parliamentary procedure, Bentham’s style and ambitions certainly aim at such a theory. Bentham himself admits that the general rules and principles he proposes largely resemble Westminster practices:

What was more, the very rules that suggested themselves as necessary to every assembly, turned out to be the very rules actually observed in both assemblies of the British Legislature. What theory would have pitched upon as a model of perfection, practice presented as having been successfully pursued: never was the accord more perfect between reason and experience. (1791: iii-iv; 1999:1)

Bentham implies that a political assembly cannot conduct ordinary political business while simultaneously inventing its own rules ex nihilo. In other words, he hints at the classical figure of an external legislator, needed to establish the rules of procedure, and he seems to understand his own work as having a claim for validity for all representative political assemblies in this sense. This is compatible with his intentions as a utilitarian legal reformer.

He was familiar with the rules of British parliamentary practice and subscribed to many of them, but was still prepared to judge them critically when they were applied to the French National Assembly. He argues that the serious shortcomings of procedure in the French provincial assemblies could to a large extent be removed by their adopting British practice. The danger as Bentham saw it, however, was ‘an adoption rather too general and indiscriminate’ of British practice (Bentham 1791: vi; 1999, 3). Dumont, in presenting the French edition (Bentham 1816), characterises Bentham’s method: ‘Il a observé ce qui se practiquoit dans le Parlement de l’Angleterre, et il en a déduit une théorie’ (Bentham 1999: 7). This indicates a general advantage of the ideal-typical approach over the empirical approach.

[45]Bentham relies on his own procedural imagination to work out the general principles, which he complements with a comparative analysis and an appended ‘general observations’. Bentham’s point is not to apply a priori principles to specific cases, but to move from the analysis of cases back to a comparative discussion of procedural practices. It is this comparative judgment that makes his Tactics an extremely valuable tract on parliamentary procedure.

Bentham ironically notes the almost unanimous praise his tract received among French readers generally, while in the busy Assembly not much notice was taken of it: ‘A few English expressions, and some of them too misapplied, compose nearly the whole of what France has drawn upon us’ (1791: viii; 1999: 3). The result was a worrying degree of procedural dilettantism in the French assembly: ‘What a profusion of useless altercation, what a waste of precious time has been produced, by doubts started and disputes carried on, concerning the terms of a decree, days after the decree has been supposed to have been framed. A sort of dispute which never has arisen for ages, nor even can possibly arise under the British practice, the only practice on this head reconcilable to common sense’ (1791: viii; 1999: 3-4). Eighteen months of French Revolution were thus sufficient for Bentham to observe that the Assemblée nationale had rejected the British model as the basis for their parliamentary procedure, as well as the procedural formalism of parliamentary politics as such. They had not even recognised the need for stable procedures.

The Whig politician Henry Brougham wrote to Bentham in 1816: ‘The Tactics are for foreign consumption rather than the home market’ (quoted in Bentham 1999: xxxiv). After the publication of the French edition, and between 1817 and 1829, Tactics was translated into German, Italian, Portuguese and Spanish (ibid.: xxxvi). Dumont characterises the aims of procedure, and the faults that the absence of such procedure would lead to, in this programmatic paragraph:

Assurer la liberté de tous les Membres, protéger la minorité, disposer les questions qu’on traite dans un ordre convenable, produire un discussion méthodique, arriver, en dernier résultat à l’expression fidele de la volonté générale, persévérer dans ses entreprises, voilà les conditions nécessaires pour le maintien d’une Assemblée politique. Il faut qu’elle se préserve sans cesse de trois grands maux qui l’assiègent dans toute la course de sa durée, la précipitation, la violence et la fraude. (ibid.: 6) ¹

[46]The assemblies of the French Revolution never seemed to grasp the political value of establishing regular procedures. Dumont regards free and methodological debate to empower an assembly – as enabled by procedures based on an organising principle corresponding to the dispositio of classical rhetoric. Even more interesting is his idea that regular procedure is indispensable for ensuring that sufficient time is available for deliberations to take place calmly and peacefully, and for the detection of any fraudulent practices.

Regular procedure also allows parliaments to counter popular accusations of corruption and arbitrary majority rule. Bentham’s Tactics emphasises the procedural style of politics (as for how the French revolutionary assemblies responded to Anglocentric proceduralism, see Gunn 2009: 23-32).

Josef Redlich regards Bentham as the only theorist of British parliamentary procedure (1905: 777-790). This is further evidence that the very existence of well-established procedure at Westminster provided the necessary conditions for Bentham’s project.

Parliamentary procedure is for Bentham a precondition of English liberty. In the chapters on the internal procedure, he subscribes to the view that a thoroughgoing parliamentary-style debate requires putting questions into a procedural form. In this sense, his stand in favour of parliamentary proceduralism is of the same type as Hatsell’s, although it differs in some of the details. Bentham’s essay provides tools for analysing the most intensive debates and at the same time it offers new scope for debates on the procedure itself.

2.8 Thomas Erskine May: Treatise and minor works

In 1844 the Assistant Librarian of the House of Commons, Thomas Erskine May (1815-1886), published A Treatise upon the Law, Privileges, Proceedings and Usage of the Parliament, a comprehensive volume of 496 pages. The Speaker, Charles Shaw Lefevre, had encouraged May to write a commentary on procedure, and May dedicated the completed work to him (May 1844: 7). It later became a canonised part of official Westminster procedure that, in the twenty-first century, is still being updated. ‘Erskine May’ became a metonym for British parliamentary procedure (see David Holland’s presentation of the editions, including May’s and later editors’ prefaces, in the edition of 1971). I read the work, however, as a contribution to the genre of procedural tracts and assess the Treatise from this perspective.

In addition to the first (1844) and second (1851) editions of the Treatise, I will deal with two booklets by May, namely Remarks and Suggestions with a View to Facility to Dispatch of Public Business in Parliament (1849) and The Machinery of Parliamentary Legislation (1854). The latter was published first[47] in the Edinburgh Review and was republished as a booklet by William Rathbone in 1881, with a letter from May.

After decades of struggle, a major reform of parliament was realised in 1832. This well-known reform had two major aspects: a moderate extension of the franchise, and a relatively extensive redistribution of seats, including both the disenfranchisement of a number of ‘rotten boroughs’ and the creation of new constituencies in the densely populated industrial cities. The reform posed, however, a number of challenges for parliamentary procedure, which will be discussed briefly as a background for May’s Treatise.

The political constellation that led to the Reform Act of 1832 and the constitutional disputes over the formation and dismissal of the government were followed by a parliamentarisation of the British government. It was agreed in 1835 that a government that has lost the confidence of the majority of the House of Commons must resign. Such a government could still dissolve parliament, but could continue only as a caretaker government until the next general election (for a close study of the period, see Andrén 1947). The political responsibility of the government to parliament was a major change in the power constellation, and it also contributed to the formation of the cabinet system of government.

The reformed parliament and the governments supported by it launched an unprecedented array of reform programmes in all fields of legislation. These programmes extended the parliamentary agenda to topics that had hitherto been only matters of administration, that is, these topics were politicised as items to be discussed and regulated by parliament. One of the main procedural consequences of this unprecedented extension of the parliamentary agenda was a radical increase in the amount of time needed to cope with all the items on the agenda.

This reform of parliament also set new expectations for its members. After the 1832 reform the relative increase in the number of contested elections altered the relationship of members to their constituencies: members were now expected to speak up on matters of interest to their particular electorates (see Redlich 1905: 102-105). While it was now more important that MPs made their voices heard in their local constituencies, this had the consequence that no particular oratorical qualities were required of members.

The ‘cabinet government’ system altered the relationship between the government and parliament by, among other things, intensifying the conflict between the government and the opposition. The period between the parliamentary reforms of 1832 and 1867 gave individual MPs extraordinary opportunities to intervene in politics, since for most of this period there was no clear majority in parliament. ‘Only then, during what has come to be spoken of as the heyday of the private member, from 1832 to 1842 and again from 1846 to 1868, was it possible for the individual members of parliament to exercise a decisive control[48] over government, and to bring down a ministry when they so chose,’ writes H.J. Hanham (1969: 106). From the point of view of debate, these criteria are not necessarily the most crucial ones (cf. Roussellier’s 1997 study on the French Third Republic).

This all resulted in an unforeseen shortage of parliamentary time. Already in 1806 the House of Commons had reserved two days of the parliamentary week for ‘orders of the day’, in which government initiatives took priority over others, a recognition of the government as a ‘common committee’ of the Commons and Lords (Redlich 1905: 91). In the decades after 1832, procedural reform was a frequent item on the agenda of parliament.

As Redlich notes, some reforms of procedure were realised soon after the 1832 reform. They concerned the time at which sessions would begin (12 noon instead of 4 pm), a reduction in the number of debates on petitions, and a division of the parliamentary week into order days, (for obligatory items), and notice days (for facultative items on the parliamentary agenda) (Redlich 1905: 95-102).

This was the situation in which May wrote the first edition of his Treatise. May was not yet a real parliamentary insider, and ‘the first edition contains very few references to debate in Parliament,’ writes Holland (1971: 2). He gained experience as an examiner of petitions for private bills and as Taxing Master for both Houses, which ‘brought him into direct contact with the day-to-day work of Parliament’ (ibid.). He was considered for the Clerk’s position, but only in 1856 was he appointed to a post in the chamber as Clerk Assistant (ibid.: 3).

May opens the Treatise with a declaration: ‘It is the object of the following pages to describe the various functions and proceedings of parliament in a form adapted, as well to purposes of reference, as to a methodical treatment of the subject’ (May 1844: v). He mentions ‘the well-known work of Mr. Hatsell’ as an ‘authority upon all the matters of which it treats’, but claims that ‘no general view of the proceedings of both Houses of Parliament, at the present time, has yet been published’ (ibid.). He assumed that Hatsell’s work would continue to serve ‘as a standard authority’ for the British parliament (Holland 1971: 2). The methodical principles of May’s volume are expressed as follows:

The arrangement of the work has been designed with a view to advance from the more general to the particular and distinct proceedings of Parliament, to avoid repetition, and to prevent any confusion of separate classes of proceedings: and each subject has been treated, by itself, so as to present, first, the rules or principles; secondly, the authorities, if any be applicable; and, thirdly, the particular precedents in illustration of the practice. (May 1844: vi)

Against the quasi-inductive approach of Hatsell, May classifies topics quasideductively. ‘The proceedings […] will be followed in the order which appears the best adapted for rendering them intelligible, without repetition, and[49] apart from any presumption of previous knowledge’ (May 1844: 133). He aims at rendering the discussion on procedure more readable for outsiders. May’s method is reflected in his insight that ‘all the rules in relation to questions and amendments are applicable to the passing of bills’ (ibid.: 269).

May highlights two temporal layers of procedures, ‘ancient usage’ and ‘modern practice’:

The proceedings of Parliament are regulated chiefly by ancient usage, or by the settled practice of modern times, apart from distinct orders and rules: but usage has frequently been declared and explained by both houses, and new rules have been established by positive orders and resolutions. Ancient usage, when not otherwise declared, is collected from the Journals, from history and early treatises, and from the continued experience of practised members. Modern practice is often undefined in any written form; it is not recorded in the Journals; it is not to be traced in the published debates; nor is it known in any certain manner but by personal experience, and by the daily practice of parliament in the conduct of its various descriptions of business. (ibid.: 131)

To the layperson, May’s first edition of the Treatise may appear to be a modest commentary on the rules and practices of Westminster. It is, however, a different matter for parliamentarians, who read it with an eye to the political horizon of chances and to occasions for procedural disputes. May hints at the latter type of reading when mentioning, for example, an amendment of 1802 that, with only slight alterations to the text, changed from an intended vote of no confidence against Pitt into a vote of appreciation for him (ibid.: 176).

In this sense the Treatise is a tract on the possibilities for parliamentary action and its procedural horizons. Experienced MPs can find in May’s tract legitimate, if subtle, interpretations, including a normative programme of fair play that sets limits on the misuse of procedure. In directing the attention of the reader to different ways of interpreting procedure, he also suggests how members can make use of such procedural disputes. May stresses that the Speaker should have the neutrality of a referee in order to moderate the procedural disputes that constantly arise in parliament.

Erskine May also took a stand on the current state of procedure, and his booklets use strong words on its shortcomings and the failure of parliament to reform it. May’s booklet on the ‘machinery’ of parliament calls for reform of procedure in order to protect parliamentary politics from paralysis brought about by the limited time and the excessive activism of some members. Members’ awareness of their position and of the resources at their disposal had grown to such an extent that it no longer sufficed for them just to learn the rules. In order to prevent a literal interpretation of the rules leading to total deadlock, members needed an interpretation of what implicit principles were essential for parliamentary politics.

[50]May looks for what lessons can be drawn from organisational models outside Westminster. He refers to the practices of the assemblies of France and the United States as examples that are parliamentary in nature when considered in strictly legislative terms (see May 1854: 25-27). Despite this, May in the end is not ready to sacrifice the British concept of parliament as a deliberative assembly to a merely legislative paradigm, although he aims to incorporate some aspects of the latter into his proposals for reforming procedure.

The Second Reform Act was passed in 1867, by the Conservative Derby government (for a detailed history of the bill, see Smith 1966). The 1867 Act marked the rise of the party organisation to fight elections (the first being the Birmingham Caucus of Liberals around Joseph Chamberlain), which tended to increase members’ dependence on their party’s electoral organisation (see e.g. Ostrogorski 1903).

After the mid-1870s some Irish members responded to proposed legislation by the use of obstructionist tactics. The campaign reached its climax under the leadership of Charles Parnell in January-February 1881, when it threatened to paralyse the entire parliamentary process. The Speaker Brand, Prime Minister Gladstone and the majority of members supporting them agreed that stricter punishments should be meted out for unparliamentary conduct and procedure should be revised, the reform to be prepared largely by May (see May 1957: 61). The changes would make it possible to put a stop to a debate if it was judged to be serving merely obstructionist purposes.

To understand May’s role in the changes to Westminster procedure, I will also discuss his testimony to the select committees on procedure (see Redlich 1905: 99). A number of his replies to the committee refer to general problems of parliament and procedure. In his Journal May also comments on these committees and the insufficiency of their results (May 1957: 26, 57-58).

The ninth edition of A Treatise on the Law, Privileges, Proceedings and Usage of Parliament in 1883 is very different from the first edition, but is still recognisably an expanded and revised version of the same work. At 950 pages it was more than twice as long as the original version. Its structure remained the same, although committees were now dealt with in two chapters. The increased number of sub-headings can be read as a summary of past procedural changes, decisions and controversies. May remarks: ‘The last four years have been unusually fruitful of Parliamentary incidents,’ which he then enumerates, including ‘the exceptional Rules of Urgency, the new Standing Orders for the regulation of the Procedure, and the appointment of Standing Committees for the consideration of Bills relating to Law and Courts of Justice, and to Trade, shipping and Manufactures’ – the last a revision suggested by May much earlier (May 1883: v).

[51]To understand the new volume, we have to consider the political and procedural changes that had transpired as well as May’s own career, from being a minor official to becoming the Clerk of the House of Commons in 1871 (see Redlich 1905: 191). The new aspects of the 1883 edition are extensions and additions, not replacements, of May’s earlier interpretations.

May’s statements to the committees and the Treatise of 1883 can also be read as a historical inventory of the possibilities for procedural controversy and the tactical use of procedure to further one’s own political ends. The very narrative of the Treatise suggests the presence of parliamentary ideals, which are given form and mediated through controversies over the application and interpretation of the rules by participants, the Speaker and parliamentary authorities such as May himself.

In concentrating on intra-parliamentary topics, the Treatise follows the line of other procedural tracts. Its main strength lies in its concentration on crucial procedural disputes, although the broader changes in British parliamentary politics also provide a perspective on May’s interpretation of the procedural changes. The debates in the procedural reform committees and the obstructive campaign of Parnell and his associates made the issue of the shortage of parliamentary time pressingly urgent. The danger of using speeches for obstructionist purposes to prevent debate on items on the agenda informs the entire 1883 edition of the Treatise.

2.9 The popularisation of procedure and a comparative perspective

New legislation in 1882 reduced the chances of waging a successful campaing of obstruction as a legitimate, though extreme, form of parliamentary politics. Public sympathy for such campaigns had also waned. The Gladstone government’s Home Rule policy in the mid-1880s split the Liberal Party and was controversial among Irish members.

The pressures on parliamentary time remained strong, however, as the underlying trends of an increasingly long agenda and plenary speeches persisted. In 1886 a new select committee led by the Marquess of Hartington put forward proposals for another major reform. A proposal of the new Conservative and Unionist government, presented by W.H. Smith in February 1887, contained, according to Redlich, additional limitations on freedom of speech. The House of Commons was not ready to accept the more radical reforms, approving only of lowering the support needed for cloture to 100 members. The guillotine was used for the second time, in a debate on Ireland, in 1887, but it was not made a regular part of Commons procedure (Redlich 1905: 209-217).

[52]After 1896 the new Conservative leader of the House, Arthur Balfour, undertook a major reform of budget procedure, but this ran into difficulties over the possibility of applying the guillotine to the entire budget (ibid.: 223-229). A further major reform introduced by Balfour as prime minister in 1902 concerned the weekly and daily calendar of parliament. This reform, which prevented the delaying of debates by more clearly dividing items by type into different sessions, was largely approved (ibid.: 230-232). In general, the tenor of Balfour’s reforms gave priority to the government, which prompted Liberal leader Campbell-Bannerman to warn that parliament was being reduced to a ‘legislation factory’ (ibid.: 236).

In short, we can detect two approaches in the reform proposals for coping with time pressures. While the need to prevent obstruction, unnecessary delay and purely formal speeches was a generally shared principle, related to the fair distribution of parliamentary time, how this fairness could be realised remained a matter of dispute. One side demanded recognition of the government’s precedence in all parliamentary matters. The other side insisted on recognition of the powers of parliament, its members and its inclusion in the fair distribution of time. The question remained: how could an independent role for parliament be appropriately combined with a degree of government precedence in parliamentary initiatives?

Reginald S. Palgrave (1829-1904) succeeded May as Clerk of the House of Commons. His book, The House of Commons: Illustrations of its History and Practice (second edition 1878), aimed to spread knowledge of ‘the characteristic features of the House of Commons’ both among ‘the parliamentary constituencies’ and ‘our households’ (1878b: vii).

Palgrave’s booklet The Chairman’s Handbook: Suggestions and rules for the conduct of the chairmen in public and other meetings, drawn from the procedure and practice of the Parliament (1878a) can be regarded as the Westminster equivalent of Robert’s Rules of Order (1876), the famous document written by US Brigadier General Henry M. Robert originally as a handbook for his church. Palgrave’s point is both to correct some common misunderstandings about procedure and to illustrate its applicability to public meetings. In his dedication as Speaker, he reveres May’s Treatise as the main authority on parliamentary procedure, stating that it can also be followed in other kinds of public meetings and that these would do well to follow as closely as possible the parliamentary practice sketched by May (Palgrave 1878a: v).

Henry W. Lucy’s (1842-1924) Popular Handbook of Parliamentary Procedure was first published in 1880. Its title refers to its intention ‘to describe, in simple language and moderate compass, the manner in which the business is conducted in the House of Commons’ (Lucy 1886: vii). The more specific target is ‘to make the time-honoured intricacies of Parliamentary Debate’ intelligible[53] to newspaper readers and to the members of parliamentary debating societies (ibid.: 7-8).

The journalist Lucy’s work is not just a handbook of existing rules and practices, but also an exposition of their political aspects. He offers a concise interpretation of the procedural reform of 1882, and his text goes beyond the ninth edition of May’s Treatise in discussing the political consequences of the revised rules.

Lucy sees one purpose of the rules to be to enable parliament ‘to control its own members’. He interprets the rule ‘that nothing passes by order of the House without the question and that no order be without the question affirmative and negative’ as having been ‘settled in the reign of James I’ (Lucy 1886: 12). The House of Commons had been reluctant to change its procedure (ibid.: 17), which was manifested in how the press had been treated by parliament until very recently.

The popular booklets of Palgrave and Lucy are evidence of the presence of a wider parliamentary culture of politics in nineteenth-century Britain beyond Westminster – in public meetings and parliamentary debating societies as well as among political journalists and newspaper readers. Common to both tracts is the feeling of a growing distance between parliament and the general public. Palgrave strongly defends proceduralism and seeks to illustrate its benefit for the broader political culture. Lucy emphasises parliament’s slowness to respond to novel challenges, such as the rise of the newspapers. He takes obstruction to be one symptom of the wider problem of increasingly scarce parliamentary time. He is keenly aware that the reforms do not substantially alleviate the pressures on time, and he is prepared to think of new ways to deal with the problem, including devolution and a partial transfer of parliamentary powers from the plenum to the committees.

One of the Clerks of the Parliament after May, Courtenay Ilbert (1841-1924), was a prolific author on parliamentary procedure. A jurist who had worked in India, Ilbert published three editions of his Manual of Procedure in the Public Business of the House of Commons, a handbook updating May’s work. In addition, he published an overview of the history and practices of parliament as well as several treatises on legislation, in which he compares the British with foreign parliaments. Furthermore, he wrote an extensive preface (1908) to the English translation of Redlich’s Recht und Technik des Englischen Parlamentarismus.

In Legislative Methods and Forms (1901), Ilbert discusses the techniques of law-making from a comparative perspective. In the chapter, ‘Parliament as a legislative machine’, Ilbert summarises concisely the opposition between Napoleon’s legal codification and how legislation was understood in Britain and its colonies.

[54]Ilbert’s Methods of Legislation (1911) posits at the outset ‘an agreement among all civilized nations as to the general principles on which legislative procedure should be founded. […] Every important law must, before it takes its final shape, be submitted to the scrutiny and criticism of, and being liable to amendment and rejection by, a popular assembly elected for that purpose.’ (Ilbert 1911: 7) This is a strong stand in favour of a robust and systematic procedure for parliamentary, deliberative control of all legislation.

For Ilbert ‘all modern legislatures, with a very few exceptions, may be traced back to a single prototype, the Parliament which sits at Westminster’ (ibid.: 9). He further situates the Westminster model in the recent historical period: ‘And it is a commonplace of history that when European countries were refashioned after the subsidence of the Napoleonic deluge in 1815 the British Parliament, with its two houses, was generally adopted as a pattern’ (ibid.: 10). The Bonapartist regime was the last alternative to Westminster in the politics of legislation.

In his preface to Redlich’s book, Ilbert emphasises the importance of the history of parliament for an understanding of its procedure: ‘The Parliament of Westminster is not only a busy workshop: it is a museum of antiquities’ (Ilbert 1908b: vi). The crucial opposition for Ilbert is that between the system of the separation of powers and the British cabinet system: ‘It is this separation but interdependence of the criticising and controlling power on the one hand, and the executive power on the other, that constitutes the parliamentary system of government’ (ibid.: vii). He interprets the procedural changes as a response to the shortage of parliamentary time within the cabinet government.

Ilbert was not a major reformer of procedure, and his style tends to gloss over the historical controversies over it. In his numerous writings on procedure, he argues well for the historical uniqueness of Westminster as a ‘prototype’ of parliamentary proceduralism and its contrast to the French and US models. Ilbert’s writings give priority to parliamentary government over the rules of procedure and justify the new privileges of government on the basis of the increasing pressures on parliamentary time. Still, he does not deny the importance of the ‘old opposition’ between parliament and government, nor the free mandate of members in maintaining parliamentary control of government.

2.10 Westminster procedure for foreign audiences

To the procedural tracts I have added a selection of non-British commentaries on Westminster procedure in the form of a few ‘representative anecdotes’ (K. Burke 1945) to represent a wider range of possible texts.

[55]My criterion has been to select texts that are comparable to the other British tracts discussed here. This excludes, however, the most famous non-British commentary, Thomas Jefferson’s A Manual of Parliamentary Practice for the Use of the Senate of the United States of 1801, which in a style similar to Lex parliamentaria refers only to existing works and offers no independent view of British procedure. The selected tracts of Cohen, Baring, Hatschek and Lowell are cited with an emphasis on their Westminster-like features. They take up some underlying rhetorical and political assumptions that have seldom been thematised by British authors.

Hamburg lawyer and local politician Gottfried Cohen (b. 1819) wrote a commentary on the English constitution in 1847, entitled Grundzüge der parlamentarischen Verfassung Englands. Despite the royalist ‘reaction’ against the parliaments of 1848-1849, parliamentary practices did become introduced into German political culture at that time. Cohen’s experiences, including his membership of the Hamburg Bürgerschaft, were behind his comprehensive study, Die Verfassung und Geschäftsordnung des englischen Parlaments mit Hinweis auf die Geschäftsordnungen deutscher Kammern (1861). It is the closest approximation to a British procedural tract written outside Britain.

In his Vorrede Cohen provides grounds for a closer examination of British procedure. For German parliaments the French form known in German as Kammer-Schablone is easier to understand and deal with than the British model, but for Cohen it is also inferior (Cohen 1861: iv). British tracts, he argued, presented and critiqued contemporary parliamentary practices, but they failed to discuss the general principles of parliament (ibid.: iv-v). Cohen’s tract is addressed to ordinary readers of German newspapers as well as to members of the different ‘chambers’ in the country (ibid.: v).

W.F. Baring (1844-1915) was an Englishman and a longtime resident of Brussels. His small volume, Les Anglais chez lui: les institutions politiques, serves the modest aim of giving an overview of the main features of British political institutions to readers in Belgium (Baring 1885: 7-8). He tells the anecdote of a foreign visitor’s meeting with the Speaker of the House of Commons, Denison, who showed the visitor a large collection of parliamentary files in his office as ‘Notre règlement, voilà’ (ibid.: 67). This illustrates the difference between the short and precise written regulations of the continent and British practice, in addition to which he remarked that the files include ‘une répertoire de contradictions et de précédents antagonistiques’ (ibid.).

In 1905 the German Law professor, Julius Hatschek (1872-1926), published a major two-volume study, Englisches Staatsrecht, which includes a chapter on parliamentary procedure. The chapter on the internal proceedings of parliament is called Lex et consuetudo parliamenti. Hatschek emphasises the juridical character of procedure, dividing it into customary law and ‘Orders’,[56] or statutes enacted by parliament in line with the common law system (Hatsell 1905: 359).

A(bbott) Lawrence Lowell (1856-1943) was an American constitutional lawyer, who published the two-volume work, The Government of England, in 1908. Soon afterward he became President of Harvard University. His comments on procedure refer to existing practices. Lowell’s closeness to empirical political science is visible in his examples concerning the frequency of the use of rules. This approach made clear the political point of procedural rules and practices, especially as used in the parliaments of his day.

What can a British MP do in the plenum of the House? Lowell’s answer is simple: ‘In the House he can only speak, listen and applaud’ (Lowell 1908: 249). This is not a balanced judgment insofar as it considers applauding to be legitimate, but fails to mention its counterpart, interjections from the floor or other forms of protest in regulated forms. For an outsider, Lowell came perhaps the closest to an insider’s view of procedural practices. With his Anglo- American perspective, he appreciates parliamentary government and the modes it has developed within the British cabinet system.

2.11 Twentieth-century procedure: Campion

The canonisation of May’s Treatise made it more difficult thereafter to write any original tracts on British parliamentary procedure. Still, Gilbert Campion’s An Introduction to the Procedure of the House of Commons (1929) is a remarkable tract with a new profile of its own. Campion (1882-1958) was at the time of the first edition an Assistant Clerk of the House of Commons. He was later promoted to Clerk, edited May’s Treatise in 1946, and became Lord Campion. A second edition of his Introduction was prepared in the 1930s, but not published until 1947. A third edition with an extended historical section and remarks on the principles of parliamentary procedure appeared in 1958, the year of Campion’s death. In addition, he edited British Government since 1918 (1952) and Parliament: a survey (1953), writing important procedurerelated chapters in both. Furthermore, he co-edited European Parliamentary Procedure: a comparative handbook (1953).

In the Foreword to the first edition of the Introduction, Clerk Lonsdale Webster writes that something ‘less weighty’ than May’s Treatise had been needed. ‘A book that shall tell new members of the House of Commons in a simple form what they want to know about their duties and opportunities’, a book also demanded by ‘those engaged in legislative assemblies overseas, members of local bodies and debating societies’ (Campion 1929: v). Campion thanks the publisher for having supported his work, expanding its scope to[57] something ‘on a scale midway between the official Manual of Procedure and May’s Parliamentary Practice’ (ibid.: vii). He comments on the procedural language of parliaments:

In the first place, technical terms are often convenient short-hand, and to avoid them by the use of lengthy paraphrases would be laborious and pedantic. Besides, the idioms of procedure are not translatable, or, if they are, few experts would agree upon the translation. I have therefore compromised by defining the less well known terms which I have used, and I have even found myself driven to invent one or two new terms myself – not without explanation. Nor do I see any need to avoid the use of expressive parliamentary slang. (ibid.: vii)

Campion seems to be the first tract author to reflect on the special character of parliamentary language, both on the need for ‘translation’ for non-specialist readers and on the limits of such translation, prompting his attempt to ‘teach’ this language to the readers of his book.

In the table of contents we can see recent political changes, especially the Parliament Act of 1911, which radically restricted the veto power of the House of Lords and introduced payment for members from 1912 onwards.

An Introduction to the Procedure of the House of Commons is a very modest title. Nonetheless, a historical and comparative reading of it as a procedural tract suggests that its achievements are probably greater than the author himself realised. The reasons for this are closely connected to the political situation of the time. The full recognition given to the system of cabinet government in procedure as well as the decline of heated debates around obstruction, closure and the guillotine had moved the focus of daily disputes away from procedural matters. Campion does, in fact, maintain a greater distance to his subject matter than, for example, May or Ilbert.

In the Foreword to the 1958 edition, Charles MacAndrews, chairman of the Ways and Means committee, writes that Campion’s book is not oversimplified and avoids being ‘too abstruse to hold the interest of the uninstructed reader’ (Campion 1958: v). In his preface, Campion refers to recent major political and constitutional changes, as well as to less spectacular ones, such as the ‘removal of the disqualification on government contractors from sitting and voting’ (ibid.: viii). He also provides an enlarged section, with more examples, of comparisons to foreign parliaments.

Perhaps the most interesting novelties in the 1958 edition are to be found in the opening chapter, on the history of House of Commons procedure. On procedural grounds Campion divides the history into four periods: the establishment of parliament to the beginning of the Commons Journals, ca. 1300 to 1547; 1547 to the Restoration; 1660 to the period of modern standing orders, commencing with the first reformed parliament, 1832; modern standing orders, 1833 – (Campion 1958: 15).

[58]The years after World War II were ones of great recovery for parliamentary government as an institution throughout Western Europe, but not necessarily for a parliamentary culture of politics. From this perspective, we can understand better Campion’s stronger recourse to the origins of certain procedural principles and his criticism of procedural revisions that were unnecessary for parliamentary government. His reinterpretation of the procedural history of the House of Commons concludes with an exposition of key parliamentary principles that have been retained despite standing orders. Principles such as ‘moderation’ and ‘fair play’ transcend the procedural level and attest to the presence of a parliamentary style of politics.

2.12 Contemporary procedure: Griffith and Ryle

J.A.G. Griffith and Michael Ryle’s Parliament: Functions, Practice and Procedures (1989) and its second edition by Robert Blackburn and Andrew Kinnon (2003) can with certain reservations be included in the set of procedural tracts. I quote mainly from the second edition of Griffith/Ryle (2003), because its composition follows the original text. Except for the updated edition of May’s Treatise, none of the previous tracts are mentioned in Griffith/Ryle. Ivor Jennings’s Parliament (1939) is presented as the closest predecessor (Griffith/Ryle 1989: vii).

Griffith and Ryle, Emeritus Professor of Public Law and Clerk of Committees in the House of Commons, respectively, use a sociological approach insofar as ‘functions’ take precedence over procedures. Nonetheless, the chapter on procedure in the 2003 edition is more than 200 pages long, augmented with discussions on procedural aspects elsewhere. Given the emphasis on this aspect, I do not have difficulties including the volume within the tract genre.

Still, the priority of the functional over the procedural perspective sets limits to the comparison. Griffith and Ryle write in their preface: ‘Instead of describing the various processes – legislation, debates, financial procedures etc. – as separate and self-contained, we have emphasised how all procedures are essentially means of achieving ends, often involving overlap and interrelationships. We base our description on an analysis of the functions of Parliament and we seek to show how procedures operate to fulfill those functions.’ (ibid.: vii) In other words, procedural formalism is instrumentalised in favour of a functionalist teleology.

The first ‘function’ has the title ‘Parliament as a debate forum’. The suspicion arises that something of the distinctive proceduralism of parliamentary politics is lost when debate is called a ‘function’. The functionalism makes parliament[59] a ‘forum’ for its members in which debate is the primary task, which loses parliament’s character of being an assembly to determine the priority of the items on the agenda and to deliberate pro et contra. This is most clearly visible in the distinction between ‘three principal participants in the parliamentary arena – the Government, the Opposition and back-bench Members on both sides’ (ibid.).

Perhaps parliamentary politics here appears as a way of organising politics, not as a parliamentary way of thinking about it. If debate is a function for members, the controversy between views is reduced to something that ‘takes place in parliament’, instead of forming the core of acting politically in a parliamentary manner. But, as in the case of Bentham’s utilitarian philosophy, it is up for discussion how far and in what respects such metonymic reductionism shapes the actual practices of debating.

2.13 The changing agenda of procedural controversies

Since the time of Sir Thomas Smith’s ‘mervelous order’, it is evident that parliamentary ‘order’ is a procedural order aimed at the conduct of debates pro et contra. None of the procedural tracts presupposes anything like a higher harmony or consensus to be achieved in or through the manner of debating, nor do any of the tracts seek to subordinate the debate-focused procedure to the achievement of results that would be of more enduring importance than the procedure itself.

How far has procedure itself been recognised as subject to debate and controversy? One answer goes back as far as the tract of Henry Scobell, with its distinction between procedure and substantial questions on the agenda. This concerns e.g. the power to sanction ‘unparliamentary’ conduct or the power to guarantee parliament’s ability to act under extraordinary and urgent conditions. Parliament’s power to decide upon its own procedure has retained its status as an unconditional right or share in power that is beyond the government’s prerogatives.

Hatsell referred to situations in which ‘disputes have often arisen’ (Hatsell 1818/II: 93). He was not content to give an authoritative interpretation from the clerk’s chair, but saw that different interpretations of procedure were possible, including conflicts between different rules, and that such procedural disputes had been at the core of parliamentary deliberations. This is a major reason why such procedural tracts are written at all: they illustrate where controversial interpretations have arisen and how they have been treated previously, occasionally introducing a discussion of principle in some hypothetical cases. This character is also evident in the work of Campion, who does make fair play an[60] explicit parliamentary principle for dealing with such controversies without giving any specific solutions to them.

To these acknowledgements of the potential omnipresence of procedural controversies, we can add the tactical use of procedural principles in parliamentary conflicts. Even though Bentham and May occasionally decried the ‘misuse’ of procedural principles, and Irish obstructionists consciously practised such ‘misuse’ (partly for anti-parliamentary purposes), an inherent part of parliamentary proceduralism is the instrumentalisation of procedural principle as a part of the political repertoire of members engaged in the parliamentary struggle.

The point is that in the course of new questions concerning the agenda, new procedural controversies will also arise, the ‘misuse’ of which cannot be prevented a priori. So long as parliamentary politics is open to novelty, an inherent part of parliamentary proceduralism is the recognition that no procedure can ever be perfect, and even striving for such perfection is a mistake, for it fails to recognise that new political controversies always mark challenges that can be opportunities to revise procedures. This sense of procedural openness is an inherent part of the politics of the procedural tracts themselves. What the procedural tracts have to say about a parliament’s agenda is a good indicator of parliamentary powers.

1 To secure the liberty of all members, to protect the minority, to make an appropriate disposition of the questions dealt with, to achieve a methodical discussion, to reach a result that is in the last instance of a trustful expression of the general will, to follow consistently one’s projects – these are the necessary conditions for the maintenance of a political assembly. It has to fight permanently against the three great threats that are regularly appearing in its course of action: precipitation, violence and fraud.