Orders of the Day

 

O is for orders of the day, those items of business relating to matters that have already been introduced into the House and which the House has decided should be dealt with on a particular day. The most obvious example is the second or third reading, or the report stage, of a bill. They are to be contrasted with notices of motion, which are new items of business that a Member has put on the House’s agenda for a particular day: as Spencer Perceval put it in 1811, orders ‘were a portion of the public business fixed by the House to come forward on a particular day’; notices ‘were only fixed at the pleasure of a particular member’. The distinction between these two elements used to be the basis for the construction of the House’s daily agenda (confusingly and unhelpfully known as an order paper). The terminology has largely (and thankfully) disappeared from the order paper itself, in pursuit of a more easily comprehensible agenda; but it is still very visible in Standing Orders and is a key to understanding how the House of Commons works today and worked in the past.

How did pre-modern Parliaments schedule business? Or even, did they schedule business? The point may appear too obscure to be worth worrying about (and indeed, few have), but the ability to set an agenda is of enormous importance in the management of a political assembly, and its development is another of the many obscure and imperfectly understood corners of the history of parliamentary procedure. Upsetting the order in which items of business were dealt with was in the past one of the commonest procedural moves designed to frustrate some project, far more common than taking the more drastic step of trying to defeat it directly. But we know very little about how that order was established in the first place. The silence on the subject in the pre-nineteenth century sources is so remarkable, indeed, that scholars such as Josef Redlich, the late nineteenth century historian of parliamentary procedure, concluded that there can have been no problem in finding sufficient time for all the business. As he wrote, referring to the guide to parliamentary precedent published by the late eighteenth century clerk, John Hatsell:

It is remarkable that Hatsell gives no information whatever about the actual distribution of the course of business in the House. We perceive here, no doubt, an oversight on the part of the learned Clerk: even in earlier descriptions we have some account of the solution of this problem. Surely also we might have expected from Hatsell some statement as to the method of arrangement of the daily programme and as to the distribution of business throughout the session. But from the facts that there are in the journals no resolutions as to principles for determining these matters, and that Hatsell does not concern himself with them, we may draw an unmistakable inference as to one characteristic of the parliamentary procedure of this period, namely, that the large and difficult problem set before the modern House of Commons in arranging its daily business and its work as a whole was entirely unknown to the procedure of that day. [Redlich, I, 65]

On this fact Redlich built an interpretation of procedural development from the eighteenth century to the end of the nineteenth closely concerned with understanding the key problem of his own day – the minority obstruction of political assemblies – which has been largely followed ever since.

One of the earlier descriptions to which Hatsell referred was John Hooker’s Order and Usage how to keep a Parlement in England of 1571. Hooker wrote that the Speaker took decisions about which of the bills that had been brought in should be read, ‘unless order by the whole house be taken in that behalf’ (p. 168). William Hakewill’s Manner How Statutes are Enacted in Parliament by Passing of Bills, compiled around forty years after Hooker’s work and then circulated widely in manuscript as a handy procedural manual, has a section on the ‘Orders to be observed in preferring of bills to be read’. Hakewill referred to a passage in the Irish version of the medieval treatise, the Modus Tenendi Parliamentum, which suggested that petitions—as a precursor of bills—were dealt with in strict order of (presumably) presentation, except that those dealing with matters of war, the person of the king and queen, and the public business of the kingdom (what these days we might refer to as public bills) were given precedence. But, Hakewill continued, ‘the Speaker is not precisely bound to any of these rules for the preferring of Bills to be read or passed, but is left to his own good discretion (except he shall be especially directed by the House to the contrary)’. He added that ‘howsoever he be earnestly pressed by the House for the reading of some one Bill, yet if he have not had convenient time to read the same over, and to make a breviate thereof for his memory, the Speaker doth claim a priviledge to defer the reading thereof to some other time’ (p. 136). The last comment may reflect a huge controversy in the Commons in 1593 when James Morrice presented bills, or petitions, aimed at the practices of the Court of High Commission. The Speaker (Sir Edward Coke) refused to present them to the House, claiming that he needed to be able to read them properly first, in a transparent effort to suppress a debate of considerable embarrassment to the government.

So it is clear both that it was the Speaker who was responsible for making a preliminary decision about the order in which the House should take the business before it; but also that the preferences expressed by the House as a whole played a role too on the day itself. It seems unlikely that either the Speaker nor the House as a whole took their decisions without considerable pressure applied from all sorts of angles. The Speaker would no doubt have worked closely in conjunction with the king’s ministers, and would also have been visited (and no doubt offered inducements to be cooperative) by the promoters of numerous private bills. The House itself would have been easily swayed by those who were organised enough to ensure the presence at a specific time of sufficient numbers of their supporters.

The Speaker’s role in creating an order of business for the day out of such information as he had – the orders of the day and such private intimations as had been given to him of what Members intended to move – remained central well into the eighteenth century and perhaps even beyond. Peter Thomas quotes Speaker Onslow explaining in 1738 that ‘it is always my custom, gentlemen, before I take the Chair, to digest my own mind, the manner in which the affairs of the day may be best carried on, both for the ease of gentlemen, and the dispatch of business’ [House of Commons in the Eighteenth Century, p. 155]. Onslow’s formulation, though, suggests that by then, more than ever, he was operating in an advisory, rather than a directorial capacity (the decline over a similar period in the Speaker’s role in proposing Questions on Motions may reflect the same process of the House being less ready to accept the Speaker’s guidance). Evidence from sixteenth and seventeenth century sources suggests that between Hakewill’s time and Onslow’s the House had taken to making more orders concerning what should go onto its daily agenda. In the mid-sixteenth century, the journals rarely record the House as fixing dates for particular items of business in advance except for the routine roll call (‘calling over’), or for business where it was important that particular individuals who were not Members should be present: in such cases some notice was naturally required. On 1 February 1549 the Journal does record an order to continue discussion of the subsidy on the following sitting day, a Monday (though in fact, it appears not to have been dealt with then, at least according to the Journal). I have only found one instance of the House ordering a bill to be read on a specific future day before 1600: on 9 April 1571, when it appointed a few days ahead for the second reading of a bill on Treason – perhaps a bill being treated with more than usual concern for giving notice because of its importance (following the Papal excommunication of Elizabeth I). Indeed, it clearly aroused some controversy, because Hooker’s journal of the day records (as the Journal itself does not) that ‘Upon reading of this bill order taken that no bill should be read twice together within the distance of three days because every man should be advised, and that warning should before hand be given for the reading of it’ (Hartley, Proceedings in the Parliaments of Elizabeth I, I, 246). There is a gap in the run of Journals for the last few Parliaments of Elizabeth I’s reign, but when the series begins again, in 1604, they more frequently record decisions about setting the future agenda. On 4 June 1604, for example, a bill ‘for continuance’ (of statutes} was ‘ordered to be read tomorrow morning, before eight of the clock’.  And indeed, the bill was read a second time the following day, and committed. On the 5^th another bill was reported from committee ‘and the third reading deferred till tomorrow’. There are other examples of this kind, although they affect very few of the many bills considered by the House. However, ingrossed bills, i.e., bills which had been read twice, reported from committee, and were ready to be read a third time and passed, were now routinely allocated a day for their completion, albeit in batches, rather than individually. On 17 May 1604, for example, it was ordered that eight ingrossed bills be read half an hour after eight o clock tomorrow morning (which would be on a Friday). Many of the orders about ingrossed bills appear in the Journal as the last item of business on that day, suggesting that someone is trying to settle the business of the following day.

It is difficult as always to tell whether what is visible is a change in practice, or an effort to keep a more comprehensive record of what went on in the chamber. There is evidence from 1600 onwards of occasional systematic efforts to sort out future business, though again, our record may either indicate a new practice, or a new tendency to record an old one. On 31 March 1607 the Speaker ‘produced a note, framed by the Clerk, containing the state of such bills as then remained in the House, whether passed, ingrossed, committed, dashed, rejected, or sleeping; and read it distinctly himself; and nothing else was done in it for that time’. A rather similar entry occurs in the Journal for the next sitting day after an Easter break, 20 April 1607, when the Speaker gave the House verbally a ‘note of the state of all the bills in the House, framed by the clerk’. A similar stocktake was noted on 14 November 1621, just after a recess, when ‘Sir Edw. Coke moved, to know, in what State Things left [at] our Recess: – Else, beginning in Disorder, Confusion will follow’. There followed an account of 29 bills in committee, ten reported and engrossed, 43 read a first time. Some attempt was made to sort out priorities (ingrossed bills first), though no days were appointed for individual bills.

From the 1640s the evidence in the Journal about the practice of settling the House’s business grows. An order of the House on 9 May 1642 that the Speaker should every morning after prayers, ‘before any other business be moved, acquaint the House with the Orders of the Day’ is the first time such a practice is stated in the Journal, though as with many of such statements, it may reflect a practice that was regarded as in need of reinforcement, rather than indicate something entirely new. Similar orders were passed on 21 March 1679 and 14 March 1699, when it was ordered that the Orders for the Business appointed for the Day be read every Day at Twelve a Clock (with the implication that other business, most likely proceedings on private bills, was expected to precede this). In the 1690s it became much commoner to refer to the orders of the day in the Journals, and almost standard to appoint a day for the next stage of a bill. This may be down to minuting practice: once the votes were published every day, as they were after 1689, it is likely that clerks would have found it easier, and more important, to standardise their practice. But it may suggest more standard practice in terms of dealing with the orders of the day too.

Despite the order of May 1642 orders of the day were not always, if ever, read at the beginning of the day’s business, because from the diaries of the 1650s and 1670s onwards it is clear that a demand that the orders of the day be read could be a tactic to end the debate on a particular motion. What exactly was happening is difficult to work out. It is probable that at the beginning of a day’s business, and before many Members were present (and therefore before the Speaker felt it politically possible to proceed on major agenda items), Members were in the habit of bringing forward all sorts of other business, including proposing new motions. New motions were particularly problematic, since they could often be controversial attempts to grab political and public attention, trumping interest in business that had already been debated at least once and which had often become bogged down in rather intricate and boring detail. Discussion on new motions would sometimes therefore get out of hand, dominating the day: calling for the orders of the day therefore would be one way (far from always successful) of moving on to what someone – probably the government – regarded as key business for the day. The problem may have become more acute once the practice developed of giving notices of new motions. By 1811 the House seems to have slid into the position of routinely regarding notices as taking precedence over orders, i.e., that all notices of motion that had been given had to be dealt with before moving onto orders of the day: the then prime minister, Spencer Perceval, referred to this as the ‘usage of Parliament’ in a debate in February that year. It is not clear why this should have been so. One Member claimed in the same debate that the right to make motions at any time had been abandoned in exchange for motions being given precedence before Orders of the Day; but this is a puzzle too, for no such decision of the House seems to have been recorded, and the Journal shows that motions were still commonly moved between and after proceedings on individual Orders of the Day. Perhaps this only happened with general consent: no-one could successfully move an opposed motion after the House had started on the Orders.

Successfully moving on to the orders of the day was not the end of the battle either, for there could easily be more than one item of business that had been ordered to be taken on the same day. Orders were not routinely taken in the chronological order in which they had been ordered in the first place: it took a standing order of 1852 (now Standing Order No. 27; preceded by sessional orders of 1848 and 1852) to establish that the orders of the day should be taken in the order in which they stood on the order book (a sort of rolling listing of orders of the day from which the latter was and is compiled). Before it was passed, the precedence of individual orders of the day was frequently subject to argument in the House. There is a glimpse of this process in 1702, which also hints towards the efforts of the government to guide it. Sir Richard Cocks reported on one day in 1702, that ‘when the orders of the day was read they insisted to have the first order which was to call in the Irish trustees to give an account of the petitions. Mr Boyle [Henry Boyle, chancellor of the exchequer] moved to have the report from the Chairman of the Committee of the ways and means: but it was said that report might be as well made on Monday… that it was unreasonable to make the trustees wait and attend so often and to shew them so little respect from this house.’ The government may have had an advantage in securing debate on their own orders, because if it came to a vote they were always better able to assemble a majority. But it would be something that they would only use when absolutely necessary, and one imagines that most clashes were overcome through negotiation before they came to the floor of the House as this one did. A further opportunity for raising something other than what was formally the Order of the Day was to move an amendment to it: an example is this order of the day from May 1837, the committee stage of the Irish Poor Law bill, which was hijacked by a motion — of which the Member concerned had given notice — concerning the practice of giving proxies in the Lords.)

The problem of new notices pushing out time for the orders of the day finally became intolerable, as far as the government was concerned, in the session of 1810, when, as the prime minister, Spencer Perceval, explained in the following session, the ‘continual conflict between notices of motion and orders of the day’ had meant that ‘many orders of the day of the greatest importance were obliged to be brought on at so late an hour as 2 o’clock in the morning’. Indeed, the House is recorded as having sat 56 times after midnight in the 1810 session, out of a total of around 100 sittings. The opposition regarded the problem as of the government’s own making, the result of an attempt to ‘condense the public business’ so as to bring on the most controversial matters at a time when most Members would have given up and gone home.  Thomas Creevey, who had been incensed by the bringing on of business relating to the East India Company after 1am, complained that in one of the stages of the bill concerned there had been ‘no less than seven notices to precede it, and it was one of fifty orders that day’. Perceval retorted that it ‘was not in the power of Ministers to put off the discussion of public business to a late hour, when there could be no opportunity of mature deliberation, but in the power of those gentlemn, who, having given notices of motions, had by the usage of Parliament the precedence of the orders of the day’. Perceval’s solution, offered in February 1811, was to give precedence to  orders of the day over notices of motion on three days of the week, Mondays, Wednesdays and Fridays, an innovation that was treated with indignation in some quarters of the House. It was the first step in a procedural trend that would eventually result in the domination of the time of the Commons by the government.

The way Perceval attempted to overcome the House’s problem has meant that it is (indeed already was) often assumed that orders of the day must generally have been the government’s business, whereas notices of motion were the province of private members. Indeed, Charles Watkin Williams Wynne , speaking in the ensuing debate, implied that the distinction was a fundamental historical and constitutional one, saying that ‘motions were for grievances, and orders of the day for supplies’. Wynne’s history was highly suspect, and the basic understanding was plainly not formally correct: the government would frequently put down notices of motion; and private members would frequently be seeking second readings, or consideration of amendments made in committee or third readings for bills, or other items of business that had been ordered to be dealt with on a subsequent day – just as the government did. Indeed, many of the long nights spent debating opposition business in 1810 were spent on orders of the day, as a number of the debates were adjourned from one day to another, and therefore became orders of the day. Even after the the order paper began to be published in 1817, making it more visible exactly what the orders and the notices for each day were, plenty of notices of motion on it were attributable to the government, and plenty of orders of the day were for business initiated by individual members. Even after 1811, there was no assumption that government business would come at the head of the list of orders of the day: that principle (again central to the practice of the modern House of Commons) was only stated in 1835, when it was said that Monday and Friday should be days specifically for government orders of the day, though ‘by courtesy of the House’ only; and the principle was not set on a firmer footing until 1861.

The explanation for Perceval’s innovation may have been that in practice, if not in actual fact, the orders of the day were dominated by the heavy government business of the committees of supply and ways and means. Perceval’s choice of Monday, Wednesday and Friday for orders of the day reflected what had become a traditional timetable, with those days earmarked for committee of supply. It’s possible that the House would traditionally accept the priority of committee of supply on those days over the other orders of the day, and Perceval was simply asking it also to accept the priority of supply business over notices as well. Even so, the opposition might easily have derailed the government’s system by getting their own adjourned debates put down as orders of the day for one of the days earmarked for orders, or, as indeed happened, by using the alternative delaying device of moving amendments to the motion to go into committee of supply.

The history of the development of the orders of the day is a prime example of the reluctance with which the House was dragged into acceptance of hard-and-fast rules, as opposed to conventions, principles, ‘understandings’, which it could happily override if the mood took it. During the debates on the 1811 changes, various Members suggested that it was unnecessary to have orders of the House determining such matters; an understanding would be quite sufficient. It was on such understandings, now very difficult to reconstruct, that much of the organization of the House’s business was based before the nineteenth century. During the nineteenth century changes took place – including the standing orders of 1852 and 1861 mentioned above – that would provide the government with much greater control of the agenda, and progressively restrict the territory of ‘understandings’ and misunderstandings, albeit at the cost of the right of individual Members to raise matters of immediate concern or, perhaps, to ride hobbyhorses at will. What was gained was certainly a more rational process for setting the House’s agenda; what was lost was, according to many, the ability of individual, private Members, to take the initiative – although there is perhaps less scepticism than there should be about whether all of the individual members who did take the initiative were doing anything terribly useful.

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