Parly101: How the rules and orders of the Council came to be

Let us take you on a brief trip back in time to discover how the rules and orders that guide and inform Parliament today came about and how even ancient rules can still be applied.

While we know there are various types of rules and procedures, such as Standing Orders, sessional orders, and President’ Rulings, that dictate and inform what members and the House can do, have you ever wondered how such rules and procedures first began?

For example, back in the day one rule of the House was:

“A member desiring to speak shall rise in his place ‘uncovered’ and address himself to the Chair”.

What does this mean and where did it come from?*

The rules of the House have a single purpose – the orderly conduct of business. They are the rules of the House, adopted by House and can only be changed by the House.

In the early days, there weren’t really many rules governing the conduct of business. The Governor was able to make laws when it would take too long to wait for England to do it, and the five or so members of the Council were only advisors to the Governor.

As membership increased, and members were able to initiate and vote on business, the need for rules became apparent. Borrowing and adapting from the Houses of Westminster, by 1855 the rules were relatively comprehensive and the precursor of the rules of today.

In 1856, when the Parliament of New South Wales became bicameral, rules for the new Legislative Council and for interactions between the Houses were adopted. Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, first published in 1844, became the go to book. Whenever the Council’s rules were lacking, Erskine May would be consulted.

Although the Council’s standing orders have been updated, with plain English and gender-neutral language, and we have our own procedural texts, Erskine May remains an important resource that includes relevant interpretations and precedents with each new edition (now in its 24^th edition). As our last blog stated, the rules can’t cover every eventuality and some rules are applied very rarely.

So, when a rule rarely applied in the Legislative Council is raised in the House of Commons, we listen – it might be informative.

For instance, in March this year, during debate in the House of Commons on the withdrawal agreement from the European Union a member asked the Speaker whether the Government, in putting the same Brexit deal before the House again and again, even though it had already been voted on, was out of order. The Speaker conceded that there were historical precedents to that effect and a ruling might be needed at some stage. The member was raising the “same question rule”, an ancient rule, recorded in the journals in the 1500s, designed to stop members bringing forward the same motion over and over again hoping for a different outcome.

The potential for Erskine May and the rules of the House of Commons to intervene in Brexit proceedings must have reverberated around Westminster. Reported in the British media, it did not escape the interest of the procedural geeks in the Legislative Council, because the extent to which the rules should override or interfere with the will of the House is a tricky balancing act for the President to navigate.

Perhaps that’s a topic for our next blog post…

*Answer: ‘Uncovered’ refers to the removal of a hat before addressing the Chair in the Chamber which appeared in the 1895 version of the Standing Orders and remained until 2004. As hats are much less of a thing nowadays, there is no need for the Legislative Council to hold onto any rules about whether or not they are removed.