An electronic copy of the text of Erskine May, the book which contains the rules under which which Parliament functions, has today been released by pro-democracy and pro-transparancy hackers.
The book, edited by Sir Malcolm Roy Jack KCB, who was Clerk of the House of Commons while he was editor, and produced with assistance from other parliamentary staff, was previously only available to those willing to pay the retail price of a hefty £267.00.
The text released is that of the current, Twenty-fourth edition, published in 2011.
The release of the full text of the publication on the morning of the 5th of November 2011 appears timed to co-incide with the anniversary of the gunpowder plot and a “rewired state” event at which developers are encouraged to build online tools to open up Parliament.
This opens up, to a much wider group, previously closely held secrets detailing the way our democracy is run. There are details about the types of amendments on motions the speaker will accept, rules and practices which are key to our law making process and understanding what’s going on when watching Parliament on TV or reading the records of debates on TheyWorkForYou.com.
Those who released the material did so with an accompanying statement:
The operations of any Parliament are the kernel of democracy, and that kernel must be open source.
The procedures of the UK Parliament are based on precedent and decisions by the Speaker, which are written and collated by House of Commons staff, and sold for a high price.
While private parties should be free to produce versions for profit, those rules fundamentally must be freely available to all.
We therefore offer you this electronic edition, free.
The process by which it was created will have produced some transcription errors. If you rely on this material for your work, we suggest you purchase a definitive copy.
We hope that #rsparly and other groups, gatherings and geeks will embrace and extend these simple files.
As well as information which might help MPs increase their chances of getting amendments accepted and debated; archaic details are released too, I learnt for example that one of the tellers for the Ayes is supposed to count in the No lobby, this detail, isn’t so far as I can tell openly published anywhere, which might explain why the book notes that inexperienced MPs acting as tellers for the Ayes have in the past both gone to the Aye lobby (and the pair of tellers for the Noes to the No lobby).
Voting Both
There is an interesting section on too on voting “Both”:
Intentionally voting in both lobbies is an accepted way of cancelling out the effect of inadvertently voting in the wrong lobby. However, Members who have voted in both lobbies in the same division have been allowed on the following day to state as a matter of personal explanation (see pp 376-377) in which lobby they intended to vote, and the numbers of the division have been directed to be corrected accordingly. A correction has been directed to be made at the end of government business on the same day after an explanation by a member of the government on his own and a colleague’s behalf. The Speaker has deprecated as ‘unparliamentary’ the practice of voting in both lobbies as a demonstration of a ‘third’ position
I would love to see more MPs explaining which way they intended to vote and why. There needs to be a better system than that associated with voting “Both” though. The procedure detailed in the released material appears to show a handful of MPs voting both on a close division could cause the final result of the division not to be known until the following day when the MPs in question make up their minds / explain their intent.
I suspect these details relating to tellers and voting both might well be of interest to those maintaining the Public Whip website who might in the future be able to better explain what’s going on.
Secret Sessions
The book also contains examples of previous Parliamentary practice on the basis that it might guide what happens in the future. One occurance it notes is that the House of Commons spent around an hour in private, secret, session in the early hours of the morning of the 5th of December 2001. It appears that an adjournment debate, on a motion by proposed by Douglas Hogg the Former Conservative MP for Sleaford and North Hykeham Andrew Selous MP was held during that period. There is no record of what was discussed in the secret session, just a note that it took place.
Distribution
The material appears to have been distributed, by email, to pro-democracy and pro-transparancy campaigners at around mid-day on Saturday.
I was one of the recipients.
The material needs tidying up; there is to be a call from those who released the information for others to work on tidying it up and making it accessible.
Freedom of Information
FOI requests for the material have been rejected, on the grounds it is exempt as it is available by other means (ie. by paying the £267!)
http://www.whatdotheyknow.com/request/erskine_may
Copyright Warning
The book starts with a hefty warning, threatening criminal prosecution of those breaching copyright by distributing it. This is reproduced in the electronic copy:
All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright owner except in accordance with the provisions of the Copyright, Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency Ltd, Saffron House, 6-10 Kirby Street, London ECIN 8TS. Applications for the copyright owner’s written permission to reproduce any part of this publication should be addressed to the publisher. Warning: The doing of an unauthorised act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution.
There is a history of the UK Parliament being opened up by those willing to risk prosecution for breach of copyright. The website TheyWorkForYou which makes it easy to follow MP’s and Lords’ parliamentary activity had to breach copyright law to get started (I suspect it may still be on unclear ground in relation to some of its excellent activities)
Next
Hopefully now the document has been released, first thing Monday morning, we’ll see the UK Parliament see the error of its ways in trying to keep this the distribution of this material restricted to a select elite, accept this approach is now futile, and publish the full and up-to-date version on their website.
The rules governing how Parliament is run must be available to all, from an authoritative source, for democracy to function.
If a publishing company (or anyone else) wants to take the material produced by Parliament’s staff and form it into a pretty, physical, book and try and sell it, fair enough, but the information coming out of Parliament ought be freely accessible to all.
See also
The House of Commons – Standing Orders – those elements of the rules which are currently made public by the parliamentary authorities.
If anyone spots the released material in the wild online somewhere do add a link in the comments.
54 responses to “Parliament Blown Open by Hackers”
The ‘Secret Session’ to which the article, in reality, was not a discussion about anything secret (indeed the Order Paper for the day will almost certainly tell you what it was on.
Instead, what occurred was that an MP moved a motion that the House sit in private, and because no one objected (in error), the House had no choice but to sit for the rest of the day in private.
Do you know when it will be released publicly by those to whom it was emailed?
JR,
Any of those holding a copy will risk criminal prosecution (and a serious risk of being ordered by a court to pay substantial damages/compensation) if they publish it. It may find its way online. Once something’s been released it’s very hard to reign it back in.
Secret Session,
The order of business for the day is at:
http://www.publications.parliament.uk/pa/cm200102/cmagenda/ob011204.htm
The scheduled adjournment debate was “Social services in Bedfordshire”.
A commons fact sheet states:
The record of the debate shows what happened was, during the debate on the Anti Terrorism, Crime and Security Bill, Liberal Democrat MP Paul Tyler called for the house to sit in private as a way of forcing a vote, any vote.
While this was done at ten to one in the morning, it still had the effect of the rest of the session continuing in secret. We don’t know what was discussed in Parliament in that hour. One would expect the end of the Anti Terrorism, Crime and Security Bill debate followed by the adjournment.
Suggest someone with a copy anonymously uploads a torrent for distribution? I’d probably be too paranoid that I’d sufficiently anonymised it, though!
Hopefully a prominent leak will encourage parliament to honour lipservice to transparency by making it available online – but I suspect that it’s far more likely to be viewed as an infraction of some sort!
In my day one used to acquire this sort of subversive information by going to a place known as a ‘library’.
Cambridge Central Library holds only the 21st Edition from 1989:
https://ibistro.cambridgeshire.gov.uk/uhtbin/cgisirsi/uODoScjtJp/WEB/11260028/9
(Links to search results don’t appear to work – as with too many public sector commissioned websites – it’s broken)
I searched from:
https://ibistro.cambridgeshire.gov.uk/uhtbin/cgisirsi/odY3tvRjiA/WEB/11260028/38/1/X/BLASTOFF
On the 13th of October 2011 Chris Bryant MP called for Erskine May to be placed online so MPs could refer to it in the chamber:
http://www.theyworkforyou.com/debates/?id=2011-10-13b.515.1#g552.1
It appears to me after having had access to Erskine May for a few hours that a good fraction of its content is already present in the Standing Orders of each house and the Companion to the Standing Orders and guide to the Proceedings of the House of Lords.
http://www.publications.parliament.uk/pa/ld/ldcomp/compso.htm
Perhaps we need a companion to the Commons’ standing orders too?
What would help significantly is if MPs and the speaker, referred to the documents published by Parliament rather than Erskine May when they could do so.
The Parliamentary documents appear to be better written and better referenced in any case; they appear to be the higher quality resource.
p165 of Erskine May appears to contain a paragraph key to the current news stories surrounding Prince Charles’ veto on Bills:
p440 states:
Sedition is he stirring up of rebellion against the government in power. How is the opposition supposed to operate freely and effectively with that rule in place?
I have noticed Thomas Docherty MP noting in the commons that he isn’t sure of the rules and noting a copy of Erskine May would cost him £295:
http://www.theyworkforyou.com/debates/?id=2011-07-18b.719.0#g725.3
My electronic copy of Erskine May has enabled me to make a number of comments on the record of parliamentary debates on TheyWorkForYou.
1. http://www.theyworkforyou.com/debate/?id=2006-02-14b.1283.4&u=17044#c28823
This shows how a speaker’s ruling in a specific case has been turned into a general rule by those writing “Erskine May”. I think this either brings the quality and authority of the publication into question, or shows it is doing more than merely recording past practice, and is creating the rules of parliament.
2. http://www.theyworkforyou.com/debate/?id=2011-10-27c.504.1&u=17044#c28824
While Erskine May requires ministers to be accurate and truthful when addressing (or writing) to parliament there are no provisions requiring members in general to tell the truth. The lack of a requirement for MPs to tell the truth is compounded as member is not permitted to say another member has lied; that’s considered unparliamentary).
3. http://www.theyworkforyou.com/debate/?id=2011-09-12d.778.1&u=17044#c28826
Departments must supply parliament with all papers relevant to a forthcoming debate. Ministers must make available government documents they quote from.
4. http://www.theyworkforyou.com/debate/?id=2011-09-07b.378.5&u=17044#c28827
While the Speaker often claims Erskine May states:
“temperate language, moderation and good humour” are required by Erskine May.
What Erskine May actually says is:
“Good temper and moderation are the characteristics of parliamentary language.”
5. http://www.theyworkforyou.com/debate/?id=2011-07-11b.55.2&u=17044#c28828
Erskine May appears to be the only place where the procedure for an MP to raise a “privilege complaint” is detailed.
6. http://www.theyworkforyou.com/debate/?id=2011-07-07a.1715.0&u=17044#c28829
The electronic copy of Erskine May makes it easy to highlight where a minister has selectively quoted from it.
Blog posts quoting excerpts of Erskine May applying to the Queen and Prince Charles’ vetos have appeared at:
http://www.confirmordeny.org.uk/?p=219 (Prince Charles)
http://www.confirmordeny.org.uk/?p=211 (The Queen)
My local libraries (closest thirty) don’t have one either. The closest one is the 2004 edition, is 30 miles away and is not for loan.
My library uses the same broken online catalogue system.
http://dl.dropbox.com/u/50058485/e-might.html
Lord Wakeham (Conservative) appears to have misrepresented what is said in Erskine May when speaking in the Lords on 8 November 2011. I have added an annotation quoting what it actually says:
http://www.theyworkforyou.com/lords/?gid=2011-11-08a.130.3&id=2011-11-08a.130.3&c=28936#c28936
Robert Flello MP has suggested “Erskine May” might prevent the use of handheld electronic devices in the commons chamber.
I have added an annotation pointing to the commons motion which permitted the use of such technology:
http://www.theyworkforyou.com/debates/?id=2011-11-29a.881.1&s=erskine#g889.1
The rules in this case derived from a vote of MPs and not Erskine May.
During PMQs in the Commons on the 18th of January 2012 the prime minister called Dennis Skinner a dinosaur.
Later points of order were raised questioning if this was permitted. MPs suggested Erskine May prohibited MPs calling each other animal names.
Mr Speaker said that provision was not in the current edition of Erskine May and suggested it had only ever applied to live animals in any case.
I have searched the edition of Erskine May which I have a copy of and can confirm there is no specific rule against MPs calling each other animal names.
There is the (no doubt apocryphal) story of an MP saying “The honourable gentleman has the manners of a pig”. When the speaker asked him to withdraw the remark, he said “I apologise, Mr Speaker. The honourable gentleman hasn’t the manners of a pig.”
I can’t find that reference but in 1986, then MP Mr Doug Hoyle (Warrington North) described a fellow MP’s speech as being delivered:
He appears to have got away with that one without any rebuke from the speaker.
Link to speech on TheyWorkForYou
Rather disappointed that this leak to a select few hasn’t resulted in the book’s availabilit online.
What was the point of providing it to pro-transparency campaigners if they’re just going to keep it to themselves?
As Erskine May prseumably wrote his original treatise while a paid servant of the Crown surely that volume belonged to the Crown as Crown copyright, and thus the public. By what route did successor volumes, which surely draw heavily on that original copyright material, become owned by a private company? As others have said, we have a democratic right to see every piece of guidance used to inform the actions and behaviour of those whom we elect to govern us.
On the 10th of September 2012 Jacob Rees-Mogg MP stated:
Page 429 of Erskine May states:
On Monday the 22nd of October 2012 The Speaker referred to p202 of Erskine May in response to a point of order from an MP who was complaining he wasn’t getting answers to his questions.
(TheyWorkForYou Link)
The section referred to is titled “Ministerial Accountability to Parliament” and states:
The resolution referred to appears one of the 19th of March 1997 available at:
http://www.theyworkforyou.com/debates/?id=1997-03-19a.1046.5
The text is also incorporated into the Ministerial Code, as section 1.2 parts b-e:
http://www.cabinetoffice.gov.uk/resource-library/ministerial-code
The Hansard reference is (Official Report columns 1046-47), not “667” as in the now ~£280 book.
[…] and free on the web, as an official electronic copy, for free, for all. The bootleg 25th Edition floating around is not good […]
On the 28th of February Jacob Rees-Mogg MP stated there were no Liberal Democrats in the House of Commons Chamber. He appeared to have been heckled and his attention drawn to one in the gallery.
Source on TheyWorkForYou
Erskine May states:
I suspect the TV cameras would have trouble recording a MP speaking from the galleries.
Take a roving mic up there? : )
Erskine May now costs £311.43
http://www.amazon.co.uk/Erskine-May-Parliamentary-Malcolm-Jack/dp/1405751061
On Monday the 7th of April 2014 the Speaker refered to p396 of Erskine May; when responding to a point of order on MP’s expenses.
The relevant section states:
P 396, which the speaker cited, states:
Bolding of Members of either House of Parliament was mine.
I’ve used what’s apparently included in Erskine May while reviewing the way PubilcWhip and TheyWorkForYou treat tellers when making statements derived from an MP’s participation in a vote.
I found the following section from p412 useful:
This indicates to me that a teller can be seen to be supportive of the side of the vote he tells for. ie. a teller for the ayes can be treated just like someone who voted for the ayes when it comes to making a statement of their position on a policy. It appears that a member is only required to act as a teller for the ayes if they shouted “aye” when the question was put to the house (members declaring themselves is the wording used in Erskine May for the process of members shouting “aye” or “no” when a question is put by the chair). A teller for the ayes has either volunteered to align themselves with the ayes by accepting being appointed as a teller, or had already aligned themselves with the ayes by shouting “aye”.
From p415 of Erskine May there is a litany of things tellers have done wrong, or where they have tried to push the system.
When one teller doesn’t do their job the question has been put again; where both tellers for one side fail to do their job the vote is declared in favour of the other side.
On p416 Erskine May states:
There is also a section, on p417, describing when tellers have attempted to vote themselves but their efforts have been thwarted:
Telling in the House of Lords appears to be even more interesting as the Companion to the Standing Orders and guide to the Proceedings of the House of Lords reports that there the tellers get wands:
There is very little official information about the process of voting by MPs in the House of Commons so it would not come as a surprise to me if I learned the tellers there get wands too; however I can find no mention of such a practice anywhere.
It would be useful if an e-book version of the Erskine May was produced and distributed and/or the the text was cleared up on the link given above. Many of the page links don’t work, the text is in different fonts, many pages aren’t given page numbers, etc etc. In its current format it is not easy to read…
Green MP Caroline Lucas had a written question answered on the 14th of July 2014:
The answer given by John Thurso MP (Caithness, Sutherland and Easter Ross, Liberal Democrat) was:
On Monday the 10th of November during a debate on the draft Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014.
Yvette Cooper MP moved the following motion:
p404 of Erskine May states:
It appears Yvette Cooper MP was not happy with the motion being debated by the House of Commons so deployed this motion in order to bring the debate to an end.
The motion was lost, and the substantive motion, on the draft regulations was put to the house. (On the basis that opposing “that the question be not now put” is an expression of a wish that the question be put to the house immediately)
The motion was last moved by MP David Heath in 2009 and before that it was last used in 1989.
My View
Once the motion had been moved there was no option for MPs to vote to continue their debate. The choice before MPs was either to stop their consideration of the matter before them completely, or to move straight to a decision.
Our system appears broken if one MP can force a debate be curtailed.
Page 445 of Erskine May states:
During Prime Ministers questions on the 17th of December 2014 the Prime Minister brandished and quoted from a briefing to Labour MPs which he had obtained a copy of. I don’t know if this counts as a “despatch” and if he ought be required to publish it on Parliament’s website (which is the effect of “laid upon the Table”).
The document appears to perhaps be that leaked and published at:
http://order-order.com/2014/12/15/read-labours-leaked-ukip-strategy-in-full/
The Speaker’s Digital Democracy Commission published a report on the 26th of January 2015 which recommended making the next edition of Erskine May “freely available online”. The matter is considered in Section 11 of the report.
I think this is a positive step, but “freely available online” leaves room for ambiguity, it doesn’t for example deal clearly with questions of licensing and copyright. I might hopefully assume that “freely available” means released into the public domain, but others might think publishing an image of the text online would be sufficient.
My own recommendation, as I first suggested in November 2011, would be to replace “Erskine May” with a “A Guide to the Workings of the House of Commons”. There could be a note underneath the title saying “formerly known as “Erskine May”. The guide could be modelled on the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, and provided online with a unique link to each section.
The relevant paragraph of the Speaker’s Digital Democracy Commission’s report states:
This is followed by recommendation 32:
MP Jacob Rees-Mogg mentioned Erskine May three times in a committee session on the National Health Service (Amended Duties and Powers) Bill on the 4th of February.
Mogg first complained about which doors to the room were unlocked saying:
There was no Erskine May reference there but it sets the context.
There was then a long debate about what time in the morning the committee should start meeting. The first Erskine May reference from Mogg stated the expensive tome states committees can amend their sitting hours for future meetings. I can’t see a relevant section in Erskine May but standing order 88 states “the committee shall meet further to consider the business on such days of the week and at such times as may be appointed by the committee…”
Mogg then questioned if an allegation of filibustering was “parliamentary language” within the terms of Erskine May’s definition. The relevant section of Erskine May states:
Mogg also stated later in the session, following a complaint about the lack of heating in the committee room:
Erskine May does mention candles, it states:
During the debate on the election of a Speaker on the 18th of May 2015 Jacob Rees-Mogg MP stated:
http://www.whatdotheyknow.com
From p361 of Erskine May there is a list of types of question to ministers which have been ruled out of order:
1. Questions asking whether statements accurate.
2. Questions on the details of despatches from United Kingdom diplomats.
3. Questions on matters under the control of local government, companies or other bodies such as trade unions.
4. Questions on the day to day running of nationalised industries.
5. Questions which relate to the evidence of witnesses before a Royal Commission or Parliamentary committee, and specifically proceedings in committee which have not been reported to the House of Commons.
6. Questions addressed to a royal court official or referring to the action of a court official.
7. Questions on ministers’ actions for which they are not responsible to Parliament.
8. Questions seeking an opinion on a question of law.
9. Questions to a minister on a matter which another minister is more directly responsible for.
10. Questions seeking legislation to deal with specific matters outside of a minister’s power and responsibilities.
11. Questions suggesting amendments to Bills.
12. Questions relating to opposition party policies.
13. Questions on matters devolved to the National Assembly for Wales, the Northern Ireland Assembly or the Scottish Parliament
Even in these cases it’s still up to the Speaker to make a judgement on the specific question – these are just examples of areas where questions have been ruled out of order in the past.
On the 3rd of November 2015 MP Christopher Chope asked a question in the House of Commons on the Parliamentary Assembly of the Council of Europe. He asked:
His supplementary question asked:
The relevant section of Erskine May states:
Does Erskine May cover what could happen in a period such as now when there is no parliament, as the govt. has called a general election, and then if there is a national emergency which prevents the general election happening? Can a general election be cancelled by the prime minister? Can the date be changed once announced? How long can the country be run without a parliament in those circumstances?
No, there’s nothing in the released version of Erskine May on this subject. In respect of an early general election we would have to look to the Section 2 Fixed-term Parliaments Act 2011 which states:
While it’s not specifically dealt with, and it would be down to interpretation, I suspect that the monarch on recommendation of the Prime Minister could change the date.
The Prime Minister and other ministers remain in office during the election period.
Thank you, that’s what I thought was the case, but wasn’t certain.
There is currently a lot of discussion about when a no-confidence motion could be tabled. The leaked Erskine May text I received states:
I suspect that a failure of the House of Commons to support a motion sending a note of thanks to the monarch for reading out the programme of government would be interpreted as a vote of no-confidence in itself, and the Speaker should allow a motion of no confidence to immediately follow such a defeat.
Kindly, I would be glad if an electronic version of this book is availed
From Kenya
My understanding is based on my leaked copy of the book.
In between editions of Erskine May it appears Parliamentary staff log proposed updates to the text. I’ve made a Freedom of Information request for this material:
https://www.whatdotheyknow.com/request/erskine_may_drafts
During a Bill Committee session on the 16th of May 2018 David Linden MP (Glasgow East, Scottish National Party) was chastised for reading short quotes from Erskine May:
https://www.theyworkforyou.com/pbc/2017-19/Parliamentary_Constituencies_%28Amendment%29_Bill/03-0_2018-05-16a.11.0#g11.8
The chair stated:
My local civic library doesn’t appear confident it could get hold of a copy
I’ve been considering seeking access to a copy held by a local University Library but there are lots of rules to contend with
Parliament have refused to release the work clerks are doing to prepare for a future edition of the book, as I understand it putting the commercial interests of the publishers above interest of the public having easy access now to the rules under which our society is run
https://www.whatdotheyknow.com/request/erskine_may_drafts
Just heard Chris Bryant say in the commons that Erskine May is now available on line and available to everyone …. Can’t seam to find a link to it however.
https://parliamentlive.tv/event/index/71c76d66-9531-42bf-8577-648da537fd09?in=11:29:50&out=11:30:08
The Leader of the House, Andrea Leadsom, speaking in the House of Commons today: stated:
Source – Hansard Current Rolling Feed (link may not persist)
If the book is to be published online that does raise the question of why we can’t have the live updates – the so-called “drafts” too.
There is currently discussion about the same question being put repeatedly to MPs.
The Speaker quoted extensively from p397 of Erskine May in a statement on the 18th of March 2019. The section from which he extracted quoted states:
The Speaker also referred to the origin of the convention being in 1604, Erskine May in another section, states:
Many commentators with access to a physical copy of Erskine May have been tweeting images of its pages following the Speaker’s statement.
Following the Speaker’s statement via a point of order Edward Davey MP said:
This is of course nonsense, Erskine May is not law. It’s notes on House of Commons precedent and procedures.