The resolution passed by the House on Monday 25 March to set aside Standing Order No. 14(1) for certain specified debates, and its successor, the business of the House motion passed on 27 March have been widely interpreted as Parliament ‘taking back control’ of its own proceedings from the government; in some quarters they have been seen as of profound constitutional impropriety, ‘a constitutional revolution’, as Sir Bill Cash called it, a ‘parliamentary coup’, Guido Fawkes has said. You can see what is meant, but since the government is supposed to be made up of a majority of Members of Parliament – and therefore already represents Parliament – the current situation might more accurately be described as the government losing its majority, at least on this particular issue, and consequently its ability to lead the House. But Standing Order No. 14(1) is, indeed, of profound importance to the way the House of Commons works. It sets out the basic assumption that the government sets the House’s agenda: that, with some exceptions which are set out in the Standing Order, the government’s business has precedence at every sitting.
For a provision of such fundamental importance there’s little understanding of its origins, which are sometimes attributed to the reaction to the campaign of obstruction made by the Irish party in the late 1870s and 1880s. In fact, the Standing Order made its first formal appearance on 30 January 1902 when it was introduced by Arthur Balfour as part of a package of procedural reforms designed to achieve the simplification and expediting of public business. Then, it looked like this:
Unless the House otherwise direct—(a) Government business shall have precedence at every sitting except the evening sittings on Tuesday and Wednesday, and the sitting on Friday (b) On the evening sittings of Tuesday and Wednesday notices of. Motion shall have precedence of Orders of the day. (c) After Easter Government business, shall have precedence at the evening sittings of Tuesday. (d) After Whitsuntide Government business shall have precedence at all evening sittings, and at all Friday sittings except the sittings on the third and fourth Fridays after Whit Sunday.
Balfour explained its intention as both to increase ‘the convenience of Parliamentary life’, and to achieve ‘the certainty of public business’. As he argued, with the rather ad hoc arrangements then in place, the government found it constantly necessary to put down motions to devote certain days, previously earmarked for private members’ business, to government business instead.
This is a matter which chiefly concerns private Members, who ask themselves, “Can we put down such and such a Resolution, or such and such a Bill, without finding ourselves at the last moment deprived by the Government of the opportunity of taking it?” I feel this very strongly. As regards the arrangement of business, we hope to lay down such a general plan as should relieve us from the necessity of constantly coming to the House and asking the House to give us further facilities for business. At present, by our standing orders, the Government have Mondays and Thursdays, and nothing else. No Government can, or for years has, conducted the public business entrusted to it on that very limited asset. It must come for more time; and the result is that the arrangements of private Members as regards their Motions and Bills are thoroughly upset. I have felt acutely not only having to appeal to the House for these further facilities, but that I am constantly made the butt of charges of so arranging my demands for time as to interfere with these Motions or private Bills. Those who hate a Bill urge me take the day for which that Bill is set down, while those who love a Bill wish me not to interrupt the ordinary course of public business by having an exception made in its favour. That is an intolerable position, and I for one am perfectly sick of such debates. I know all the speeches that are made upon them. I am bored with them all, including my own. There is my hon. friend behind me (Mr. Gibson Bowles,) who always comes down and denounces the Govern- ment for their tyrannical seizure of private Members’ time. Then he is followed by the hon. Gentleman the Leader of the Irish Party, who always makes an eloquent speech, in which he explains that, after all, it is not entirely the fault of the Government, but of the system; and, before you know where you are, you find yourself listening to an eloquent peroration about Home Rule! And then there is the right hon. Gentleman the Leader of the Opposition, of whom I make no complaint—because when I was in his place I did exactly the same, and when I am in his place again, unless my rules are adopted, I shall do exactly the same again—we all know that he grudgingly admits that the Government must have time, that after all the necessity is very disagreeable, and that if a little dexterity, a little more tact, a little more amiability on the part of the Leader of the House had been displayed, the painful necessity would never have arisen. Cannot we try to arrange our general programme more in accordance with what experience has shown to be necessary, not for this Government or that Government, but for all Governments; and then having laid it down, interfere with it as little as we possibly can? I need not say that the principle we have laid down is one incomparably less favourable to private Members than the existing one under the standing orders; but the existing one is never, and has never been, adhered to; and I do not think when I state what our proposals are that private Members will have much reason to complain.
In laying out the rather messy way in which the timing of public business was organised hitherto, Balfour’s speech made clear a rather vital point: that his new Standing Order was not really new, but a simplification, a codification and tidying-up of practices that can be traced well before its introduction. The previous system rested on a key distinction between orders of the day and notices of motion: notices of motion were in effect new business – new initiatives, the great majority of them the ideas of individual (backbench) Members; orders of the day were business that had already been introduced and dealt with once — for example a bill that had been read a first time, and was waiting for a second reading. Most, though not all, orders of the day were government business, simply because the government had a much greater capacity for the sustained exertion (and particularly whipping) that was required in order to get any legislation or other initiative beyond its initial introduction to a second stage or beyond. Customarily, notices of motion were taken before orders of the day, which could create a difficulty for government business: if there were many notices of motion, on which many Members wished to speak at length, the orders of the day could get pushed further and further into the evening of any sitting day.
From the 1770s onwards, the demands on the Commons were growing rapidly — in terms of legislation, of the desire of individual members to speak in the House, and particularly as a result of a series of determined campaigns for changes in government policy, most famously on slavery. After a series of sessions in which the problem became increasingly chronic, in 1811 the government led by Spencer Perceval introduced a resolution that reversed the order of precedence on two days a week, Mondays and Fridays, enabling orders of the day to be taken first. It was generally understood that this broadly meant that government business would take priority, because most orders were government orders. Over the next forty years, the order was a routine sessional order – it was passed at the beginning of every session, and in effect government business that was given priority for two days out of five for the whole session. The most important element of government business in the early nineteenth century and before was supply – the agreement of the House to the government’s financial estimates – and most of the days devoted to government business were usually consumed in the debates in the committee of supply. Perceval had originally wanted to take Wednesdays as well, but was forced to compromise; nevertheless, from 1831 it was routine for Wednesdays to be appropriated as order days after a certain point in the session, albeit supposedly devoted to private members’ orders. Sometimes, late in the session, orders were be given priority on every sitting. From 1835 Mondays, Wednesdays and Fridays were all routinely taken for order days from the beginning of the session, and often Thursdays as well. In 1852 the setting aside of three days for orders of the day finally became a standing order.
However, just making Mondays, Wednesdays and Fridays into order days did not ensure that the government’s business made progress. It still found it a constant struggle to prevent encroachments on its time by individual members. Many individual members were reluctant to use the other days, the notice days, Tuesday and Thursday, to bring their concerns to the attention of the House, because it was only on order days (when the government would make sure there was a good attendance to get its business through) that there was a decent number of other members to listen to them. They tried therefore to find ways of making their speeches on the order days instead. It was not difficult to do so, because although they were unable to move a motion on an order day (at least, until all the orders of the day had been dealt with), they quickly found that they would be able to raise just about whatever they wanted by moving the adjournment of the debate or of the House, by moving amendments to the motion that the House should resolve itself into committee of the whole House, or committee of Supply or Ways and Means, or by moving the consideration of one particular order of the day rather than another. So while formally the government had control of business on two out of the five sitting days, in practice they had far less than that. A series of select committees tried to find solutions, but were unwilling to take drastic steps to curtail the opportunities of individual members, particularly because of the historic resonance of the idea that members should be able to raise issues requiring redress as part of the supply process – ‘grievances before supply’. The result was that, instead of using its own time more efficiently for its own business, the government was forced to seek to annex more days. A standing order of 1861 made Thursdays into order days as well as Mondays, Wednesdays and Fridays, and specified that government business would be taken on three of them – the Wednesday remaining as an order day in which private members’ business could be taken. At the same time, a new standing order specified that Friday would always be devoted to committee of supply or ways and Means. But much of that Friday was a write-off, as far as government business was concerned: as Sir Thomas Erskine May wrote in the 1873 edition of his Treatise, ‘as the committee of supply or ways and means is the first order on Friday, it is practically a notice night, the government merely having the residue of the evening, after all the notices and debates on going into committee have been disposed of’ (p. 254). Hence Balfour could argue that in effect the government could only rely on two days as of right. Increasingly, as sessions wore on, the government would appropriate Tuesdays, and even (to the great discontent of private members) seek to have its own orders taken on the backbenchers’ order day, Wednesdays. In the event, the government ended up with the lion’s share of the Commons’ time — in theory at least. The American political scientist, Lawrence Lowell, concluded in his The Government of England of 1909 that in the period 1878 to 1887 government business had taken precedence in 83% of sittings, and in 1888 to 1899 in 84.5% — though this did not take into account the continued success of individual members to claw time back through adjournment motions or amendments on going into committee of supply.
The Irish obstruction of the late 1870s and early 1880s was the catalyst not for introducing the principle of government priority, but for finally closing off some of these anomalies. The package of reforms introduced by Gladstone in 1882 included various restrictive rules on the use of motions for the adjournment and a severe limitation on amendments to the motion to go into committee of supply as well as more effective provisions against obstruction, including the introduction of the closure. Further procedural reform was much discussed in the 1880s: one of the changes achieved in 1888 (7 March 1888) paved the way to the 1902 standing order by beginning to abandon the distinction between government notices and orders – in effect, any government business was now given precedence on any order day except Wednesday. As Balfour explained, the 1902 Standing Order constituted a further tidying up, an attempt to sort out, once and for all, the time when government business could be expected to come on.
Strikingly, in all of the discussions on procedural reform, the basic principle of government domination of business, as opposed to its effect on the ability of individual members to achieve their own objectives, seems rarely, if ever, to have been seriously challenged. In 1811, when the government first tried to distinguish between order days and notice days, the opposition complained about the rigidity of the rule and the inconvenience for Members trying to move motions on the days they chose, but they did not argue that it was somehow constitutionally improper for them to do so. Indeed, they complained that the same result could have been achieved through the informal arrangements which had obtained for years, based on a general acceptance of the government’s leadership role in organizing business. That attitude was clear throughout the debates in the nineteenth century, and it reflected the practice in earlier centuries too. Although it has been seen as ‘the losing of the initiative by the House of Commons’ (as a famous article written in the 1960s had it), the formal establishment of the government’s primacy through the 1902 Standing Order and its nineteenth century predecessors was, in fact, largely a codification of what was generally understood to be the practice – and, moreover, done largely in the spirit of its defence. Having said which, that practice had been originally formed in a period in which the amount of legislation presented and processed was far smaller than it had become by 1902, let alone would be later, and in which therefore the time required by government was much smaller than it would become. In later years private members’ time would be further attenuated, until it became virtually impossible for individual members to raise anything on a substantive motion as opposed to an unamendable motion for the adjournment or a private members’ bill.
Peter Fraser, ‘The Growth of Ministerial Control in the Nineteenth-Century House of Commons’, English Historical Review cxxv (1960)
Lawrence Lowell, The Government of England (1909)
Colin Lee, ‘May on Money: Supply Proceedings and the Functions of a Legislature’, in Essays on the History of Parliamentary Procedure, ed. Paul Evans (2017)