Notice (and Notice of Motion)

The requirement to give advance notice of any motion other than very narrowly procedural ones is now one of the fundamental principles of parliamentary business in both Houses. It’s a basic requirement these days for just about any action of significance in just about any formal process. But it seems to have been relatively late to arrive in Parliament, where perhaps an assumption that Members should, while the House was sitting, be attending to business meant that notice was deemed not strictly necessary to prevent the unwary being caught by surprise. How notice came to be required is one of many stubborn little mysteries of parliamentary procedural history.

Of course it was never true that Members exercised constant attention to their parliamentary duties (poor attendance was a constant preoccupation), and Members were at least from the 1640s very aware of the risk of the House being bumped into taking controversial decisions when there were few of them present. At least by the end of the seventeenth century the idea of giving notice was generally accepted in private business. But for public business, no doubt it was too convenient for the government and perhaps for others not to require notice; instead various other ways of limiting the potential for motions to be sprung on the House were preferred, which usually took the form of narrowing the time during which new motions could be introduced. The House would regularly come to a resolution that no new motion should be proposed after 12 noon, or later, 1pm or 2pm, presumably on the grounds that it was during the later parts of a sitting, when Members started drifting off to dinner, that there was the greatest risk of an ambush. The House would pass resolutions for certain items of business – such as the choice of a Speaker – to be taken only after a certain time. Outrage at the introduction of a bill for the ‘frequent holding of Parliaments’ in early 1668 (only four years after the repeal of the Triennial Act, intended to achieve just that end) resulted in an order ‘That no Bill of this Nature be tendered to the House, but by Leave of the House, and Order obtained, after Ten of the Clock in the Morning’. On the same day, as it happened, the veteran parliamentarian William Prynne presented a report from what must have been the first ever committee on the business of the House, recommending that any motion for taxation (a ‘public aid’, or ‘charge upon the people’) should not be proceeded with immediately, but adjourned, and then debated in committee of the whole House, before the House itself came to any resolution on the subject. Eventually the cut-off time for new motions seems to have been treated effectively as a standing order, though since by the early eighteenth century the House was meeting much later it had become rather nonsensical, and it had become, it would seem, a matter of routine for the House to allow new motions to be made ‘with the leave of the House’ after it had dealt with the orders of the day (which I aim to deal with later) – although very occasionally leave was turned down.

The practice of giving notice for motions seems initially to have had nothing much to do with a wish to restrict them. Peter Thomas, in his The House of Commons in the Eighteenth Century, suggested that there was little evidence of the practice before the early 1760s, and in the cases he found, it was motivated by a wish to ensure the maximum possible publicity and attendance on the part of the mover, rather than his intended victims’ suspicion of skulduggery. It may also have become a way to increase the chances that an individual Member could secure a hearing for his motion over the many other claims on the House’s time and the Speaker’s attention. Over the next forty years or so it became increasingly common: notice could be given either at the beginning of business or sometimes at the end of the day, usually in the form that the Member concerned intended to raise a particular item on a particular day. It came to be assumed that by giving notice the Member gained the right to introduce his motion; but it also, increasingly, came to be expected that the House should be given notice of any significant motions.

Opinions differed as to whether this had become a requirement. A discussion over the subject in 1806, when Speaker Abbot tried to prevent a Member (Lord Folkestone) making a motion of which no notice had been given, resulted in no real decision. Folkestone claimed that his motion was entirely unobjectionable, and therefore no notice was required, and various Members argued that in the circumstances he was right: the irascible Francis Philip observed that in the first two Parliaments in which he served, notice was not required, and suggested that this was still the case for a motions such as Folkestone’s, concerned with public expenditure ‘information concerning which the House, as guardians of public purse, must ever be solicitous to obtain’. Charles James Fox, secretary of state and leader of the House after the death of William Pitt a month below (and still no doubt deeply attached to the habits of opposition), would only defend the practice as ‘an abuse which was so long suffered to prevail, that it was not at present easy to get rid of it immediately’, and accepted that in this case it was entirely unnecessary. ‘In a constitutional view’, he argued, ‘every member was supposed to be bound to attend upon all questions relating to the supplies, the ways and means, and every expenditure of the public money. Whatever modes might latterly have prevailed, he confessed, that he like the old practice better, which was to attend to all subjects of grievance, and he was convinced that the custom of giving notice on such occasions was not founded on the principles of the rights of parliament’. No formal conclusion was arrived at, and while there was increasing pressure, particularly from government, for the convention of giving notice to be respected, failure to do so could still be tolerated, as in this instance from 1811, even when the government made its objections very plain.

But by 1844, when Erskine May published the first edition of his Treatise on parliamentary procedure, he suggested that established practice was that only an unopposed motion could be given without notice; if any Member objected to a motion being made without notice, it would not be allowed. What may have solidified the convention that notice had to be given was the practice of publishing the notices of motion, introduced by Abbot in 1817 as virtually his last action in a notably reforming speakership (the changes are well described and discussed by Martyn Atkins in this blog for the History of Parliament ). This image is of one of the early notices (combined with orders of the day). Orders of the day and notices of motion 2 Feb 1818

Before 1817, the notices seem to have been simply recorded in the House’s ‘books’ – on which were listed any continuing business which had been ordered to be dealt with on a particular day – which must have been open for general inspection, though exactly how is still rather mysterious. [see Debrett, Parl. Reg, III, 478-80]. The publication of the notices and orders encouraged others to follow the business of the House more closely – the lists were routinely republished by newspapers, especially the summaries for the week ahead that appeared on Saturdays.

Members turned out to be undeterred by the idea of having to give notice: indeed, the publicity given to their opinions and intentions may have been part of the reason why growing numbers of them were keen to do so. By 1817 there were normally several notices of motion and several orders of the day put down for each day. Newspapers commented on the particular addiction to motions of the post-reform generation of eager Members, particularly at the beginning of a session. The Annual Register wryly remarked at the beginning of the 1837 Parliament on the usual suspects putting down their hobby horses as early as they could in the new session:

Mr Grote gave notice of his usual yearly proposition for the introduction of vote by ballot; Sir William Molesworth announced his intention of moving for a committee, on peerage reform; Mr Tennyson D’Eyncourt promised to introduce a bill for the repeal of the Septennial Act; and Mr Hume another for the extension of the parliamentary suffrage to all householders. Besides, we may mention a notice from Mr Duncombe of a motion for the repeal of the rate paying clauses in the Reform Bill; from Mr Ewart one of an address to the crown for the appointment of a minister of education; Mr Roebuck announced a bill for the establishment of a system of national education; Mr Clay a motion for the repeal of the corn laws. It will be seen, that several of these notices came to nothing. It is not in the production of an act of parliament as in many other affairs, in which it is said, that the first step is the most difficult. Nothing is easier than to give notice of a motion, and so far to gain a certain degree of credit for liberal views and good intentions; whereas to carry even the simplest legislative measure into law requires a degree of management, watchfulness, industry and skill which is by no means given to every man. In the present instances, indeed, all that the authors of the motions looked to was probably little more than a hearing of them; but in the complication and accumulation of our parliamentary business even this is not always attainable without difficulty’… [Annual Register 1837 (1838), 109-110]

The movement towards the current practice of Early Day Motions (motions whose main purpose was to attract publicity, and which are never intended to result in an actual debate in the chamber) is quite evident; and May, in 1844, mentioned that ‘as motions for which notices have been given need not be made when the time arrives, the Order Book is sometimes used for the expression of opinions not intended to be ultimately proposed for adoption. This is a deviation from the true object of the Order Book; but it is not a practical evil of much importance, nor is there, perhaps, any remedy for it: but in resorting to this practice, Members must be careful, lest they give offence to the House by unbecoming expressions’ [p. 170]. An example of what May meant occurred in July 1835, when attention was drawn to a notice given by a clearly unhappy James Halse, a Cornish conservative, who rarely, if ever, actually spoke in the House.

Halse’s notice read:

upon bringing up the Report of the Municipal Corporations Bill, to move, That all Prisoners in Newgate, and the other Gaols in England and Wales, although possessing no other qualification, be, upon the principle of the Bill, entitled indiscriminately to an equal participation in all the franchises, as well magisterial as elective, thereby created; and that, to obviate all uncertainty or doubt of the benevolent intention of the bill, and the happy tendency thereof, being, in effect, to render all the higher ranks of His Majesty’s loyal and respectable subjects subordinate to the lowest, without regard to property or character, a clause be introduce in accordance with the same principle, expressly enacting to that effect; and that it may for ever thereafter be well understood, that the whole population in the corporate jurisdictions are, in all other relations of life, placed upon a footing of perfect equality, agreeably to the natural rights of man; and also, a clause to provide a suitable retreat for the gentry residing within these jurisdictions, and who, with a mind and feelings becoming their station, may seek an escape for themselves from the scene of such revolutionary infliction.

The House, clearly perceiving that the Motion was dripping with sarcasm, ordered that it be expunged from the Notice paper. [CJ xc, 435]

Most motions were, however, intended to be debated, and as far as governments were concerned, the problem was no longer one of the House being bounced into some decision they disliked, but that the House’s time was now often diverted into interminable discussions of the fashionable topics of the day, rather than progress on the legislation (in particular the business of supply) in which they were principally interested. In 1811 the House had tried to bring some sort of discipline to its proceedings by deciding to devote certain days to orders of the day (which tended to be dominated by the government’s business) and certain other days to notices (which tended to be dominated by individual Members’ business). But the rules were easy to by-pass, and frequently private members’ motions ended up being debated on what were supposed to be order days. The debate on how to prevent this went on for much of the nineteenth century and ended up with the privileging of government business now in the Standing Orders.

The first of many attempts to create a more satisfactory arrangement, the committee chaired by Charles Poulett Thomson in 1837, also addressed a specific problem with the days devoted to notices of motion. Because the motions concerned were usually the hobby-horses of individual members, it was often difficult to attract sufficient number of their colleagues to turn up and participate in the debate (or at least listen), and so notice days became notorious for thin attendance, with the House often ‘counted out’ – losing a quorum – in consequence. As the committee pointed out, given that there were often several notices dealt with on the same day, the Members concerned could, if they really cared about it, band together to ensure that the small number of people required attended throughout the day: it was, in other words, in their own hands to sort out the problem. But they also suggested that because Members usually give their notices for the first available notice day which no-one else had yet chosen, notices were often given for days weeks, even months, ahead (they even attempted to give notice for the following session).  That could often mean that by the time the day was reached, everyone had lost interest in the subject anyway – again leading to absenteeism and the House rising early because of a loss of quorum. (Lord Stanley, in supporting the committee’s proposals in the House, remarked that the problem was ‘the necessary result of hon. Gentlemen bringing forward motions on matters about which no human being cared… the fact was, that most of the notices were a mass of trash and rubbish to which no one thought it worth while to attend, except the Member who gave notice.’) The committee proposed that Members should only give their notices for up to four notice days in advance – in other words they could not specify a day for their motion to be debated later than around two weeks ahead. The recommendation was quickly adopted in November 1837.

Sir Robert Peel, though, sounded a cautionary note. As he pointed out, some additional way was required of determining which of the many notices that he foresaw being put down for debate on any day would be taken first. It is not quite clear how this had been done in the past, but evidently Peel foresaw real difficulties in the future. In fact, although there was no formal rule agreed by the House, arrangements were put in place to overcome the difficulty Peel described, for the first edition of Erskine May’s Treatise on the Law, Privileges, Proceedings and usages of Parliament, published in 1844, described the procedure of giving notice. Once he had decided what day he wanted to move his motion, May wrote, the Member concerned had to:

Be present at the meeting of the house; and immediately after prayers, when the House has been made, he may enter his name on the Notice Paper, which is placed upon the table. Each name upon this paper is numbered, and when the speaker calls on the notices at about half-past four o’clock, the clerk puts the numbers into a glass, and draws them out one by one. As each number is drawn, the name of the member to which it is attached in the Notice Paper is called. Each member, in his turn, then rises and reads the notice he is desirous of giving, and afterwards takes it to the table, and delivers it, fairly written out, and with the day named, to the second clerk assistant, who enters it in the Order Book; but only one notice may be given by a Member until the other names upon the list have been called over.

In other words, the precedence of motions would depend on that old stalwart of parliamentary decision-making, the ballot (for which, see the earlier blog here).

The whole notice of motion system was open to various kinds of abuse, among them syndicating, where a group of Members would collaborate in the ballot to ensure that their motion would secure a debate (a practice apparently favoured by the Irish MPs in the 1880s). The system was regarded as a joke – ‘usually completely useless’ when they came from government backbenchers, as Ivor Jennings wrote in the 1950s, or in effect opposition motions when they came from opposition backbenchers. The motions, by then, were often provided by the whips. No-one shed a tear when the (almost) last vestiges of the procedure were abandoned in 1995.

 

Further reading:

Peter Fraser, ‘The Growth of Ministerial Control in the Nineteenth-Century House of Commons’, English Historical Review, lxxv (1960), 444-63.

Peter Thomas, House of Commons in the Eighteenth Century (Oxford, 1971)

S.A. Walkland, The House of Commons in the Twentieth Century (Oxford, 1979), 520-1

Ivor Jennings, Parliament (2nd edn. 1957)

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