Henry VIII Clauses

H is for the Henry VIII Clause, a nickname given to a provision in an Act of Parliament that delegates to a minister the power to modify the Act itself, or other Acts of Parliament. The delegation by Parliament of various powers to ministers – ‘delegated legislation’ or ‘secondary legislation’ – became common during the late nineteenth and early twentieth century; indeed the increasing complexity of government business meant that it was unavoidable. For many, however, it was associated with the growth in a powerful and unaccountable bureaucracy, and the Henry VIII clause, apparently conferring a sovereign legislative authority on the government itself, was both symbolic of that growth and a dangerous step towards eroding the ability of Parliament to rein it in.

The tag seems first to have been referred to in a parliamentary debate by Lloyd George in the highly controversial National Insurance Bill in 1911. The nickname associates the power with a king whom the 1931 report of the ‘Donoughmore’ Committee on Ministers’ Powers – set up to examine the controversy – talked of as the ‘impersonation of executive autocracy’, and more particularly with ‘the famous Statute of Proclamations, 1539, which gave the King power to legislate by proclamation until it was repealed on Henry’s death in 1547’. The comparison, the report soberly added, is ‘certainly far-fetched’.

It did, however, build on a long tradition of English historiography concerning the 1539 statute, in which it was seen as an attempt to bring in an English ‘lex regia’, entrusting to the king all power, just as the ancient Romans were said to have done when their early republic was superseded by a monarchy. Even James I was quoted as referring to Henry VIII’s ‘tyrannical’ ambition ‘to make his proclamation a law’. In the words of one eighteenth century legal commentator ‘Such an unnatural scheme was indeed really affected, for a short time, in the bloody and tyrannical reign of Henry VIII, when the parliament awed into subjection by the frowns of a monster, passed a kind of “lex regia” in those unpopular and disgraceful statutes, wherein the king’s proclamations were indulged with the full force of regular laws’. (Thomas Bever, A Discourse on the Study of Jurisprudence and the Civil Law, Oxford, 1766, p. 88). The great eighteenth century jurist William Blackstone suggested that the ‘royal prerogative was then strained to a very tyrannical and oppressive height; and, what was the worst circumstance, its encroachments were established by law, under the sanction of those pusillanimous Parliaments’ (Commentaries, iv. 424). A.V. Dicey wrote that the statute marked ‘the highest point of legal authority ever reached by the Crown’. (Law of the Constitution, p. 49).

Modern scholarship has become more sceptical about this lurid account of the meaning and purpose behind the statute, but has struggled to interpret the limited and complex evidence relating to it. The first more scholarly approach came in a 1917 article by E.R. Adair, which argued that it had no significant impact on the nature or force of royal proclamations, and certainly did not give them the force of law. It glossed the statute as ‘a rather bungling attempt on the part of the Commons to mend the executive machinery’. The distinguished Tudor historian G.R. Elton took further the debunking of the statute as an instrument of tyranny in a piece published in 1960. He argued that the most significant element of the statute was the fact that it took an unquestioned royal prerogative – the power to issue proclamations concerning religious doctrine, the preservation of unity and concord in the realm and the ‘advancement of the commonwealth and good quiet of the people’ – and backed it by the authority of parliamentary statute. The statute explicitly said that proclamations could not be used to modify property rights or penalties extending to life, existing statutes (though this did leave open the possibility of affecting new ones), the common law, or the customs of the realm. Its main purpose, he argued, was to create a complex machinery to enforce proclamations. Nevertheless, Elton accepted that the passage of the statute was controversial, with the very limited record suggesting intense debates in both the Commons and the Lords, and that the provisions restricting its effect were the result of a series of amendments made in both Houses. It suggested that the original ambitions of the government may well have been for a more extensive power than that eventually achieved, although he played down the significance of that fact, arguing that the history of Henry VIII’s government ‘makes it difficult to suppose that anyone wished to govern by ordinance or tax without consent’.

Adair and Elton’s reinterpretation of the statute contributed to a new scepticism about the ‘despotism’ of the Tudor regime. But as M.L. Bush subsequently pointed out in a forensic study of proclamations issued under the statute, although the statute did not provide the government with an across-the-board despotic power, it did allow a considerable power to enforce proclamations against heresy (even if, in the end, these were barely used); moreover, the powers it conferred could be used in very specific circumstances to legitimise temporary changes to the provisions of a number of statutes, particularly to drastically increase penalties in cases where the government clearly felt dramatic action was necessary. It was only certain proclamations that the statute backed with statutory authority, not all, and it did extend the range of what royal proclamations could do without offending the law. The complexity of the statute’s provisions were part of the reason why it was little used in practice, and were a result of its controversial passage through Parliament. Bush argued that the government initiated the legislation because it did want to make some proclamations enforceable in the same way as statutes were, in particular proclamations relating to religious policy, and those concerned with economic regulation – though more as a rather clumsy response to an immediate political problem than as a deep-laid plot to undermine parliamentary power.

A postscript to the statute of proclamations controversy is the so-called ‘second act of union of Wales and England’ of 1543, 34 and 35 Henry VIII c. 26, which conferred on the king powers to amend or repeal the act either in whole or in part and to make laws and ordinances for Wales with permanent effect without recourse to Parliament, a provision which was sometimes regarded as even more extreme than the earlier statute. The provisions of the act of union were, however, closely related to the former status of Wales as a separate dominion, governed by separate laws, in particular the 1284 Statute of Wales, which the act in many ways echoed. As with the statute of proclamations, the powers in the act of union were rarely used, and while the former was repealed after Henry VIII’s death, the latter was held to have lapsed at the same time, though it was formally repealed in the reign of James I.

In fact the actual details of Henry VIII’s legislation were pretty irrelevant to the twentieth and twenty-first debates about delegated legislation and ministerial powers: the polemical use of the name of one of England’s most notorious monarch harked back to the idea of the ‘Lex Regia’ and not to any real knowledge about his legislative policies. The Donoughmore committee dismissed the comparison with the Statute of Proclamations: ‘the purpose of Henry VIII was to enlarge his powers to make proclamations having the force of law. The sole purpose of Parliament on the nine occasions when it passed the modern enactment [known as a Henry VIII clause] was to enable minor adjustments of its own handiwork to be made for the purpose of fitting its principles into the fabric of existing legislation, general or local, and of meeting cases of hardship to local authorities’.

The Donoughmore Committee’s list of instances of Henry VIII clause went back to 1888, a provision in the Local Government Act which enabled the Local Government Board to make amendments to the Act in order to settle problems experienced in first elections to the new county councils. It was its use in the National Insurance Bill (only the fourth instance listed by the Committee), in order to deal with unanticipated problems in bringing the new structure into effect, that seems to have brought the Henry VIII clause to more general attention. The Donoughmore Committee dismissed the claim, made in the debates on that bill by Reginald McKenna, then Home Secretary, that Henry VIII clauses had been used ‘again and again’ previously [10 Nov. 1911, c. 2011, clause 57]. This was due to an overly restrictive idea of the Henry VIII clause, for others had found many other, albeit less precise, examples of powers conferred on ministers to modify legislation which the committee ignored. The committee regarded the 1911 case as highly political: the bill needed to be passed that year – presumably before all of the details could be sorted out – otherwise it might not have been passed at all. Despite the spat over the 1911 Bill – one of the most dramatic extensions of the power of the state – the occasional use of the clause in subsequent Acts, and an undeniable growth in delegated legislation during the First World War and after, concern about it was muted until the late 1920s. By then a more general complaint about the growth in bureaucracy and the extension of the control and influence of Whitehall into all aspects of everyday life – or ‘officialism’ – was becoming a strong polemical theme among both senior lawyers and mainly conservative politicians.

The debate took fire with the essay written by the lord chief justice, Gordon Hewart (Lord Hewart) in 1929, The New Despotism. Hewart, widely considered to be one of the least distinguished members of the senior judiciary of modern times, had been a liberal MP and minister, closely associated with Lloyd George, solicitor general and attorney general during the War. Hewart’s powerful, and much-discussed polemic claimed that ‘for some years past’ there had been ‘a persistent influence at work which… has the effect of placing a large and increasing field of departmental authority and activity beyond the reach of the ordinary law’ (p. 11). Hewart complained of ‘bureaucratic encroachment’ (he was well-known for his suspicion of the civil service) and a ‘persistent and well-contrived system, intended to produce, and in practice producing, a despotic power which at one and the same time places Government departments above the Sovereignty of Parliament and beyond the jurisdiction of the courts’ (p. 14) – the ‘New Despotism’. The Donoughmore Committee was the government’s response to Hewart – apparently organised by Hewart’s bête noire, the permanent secretary of the Lord Chancellor’s department, Sir Claud Schuster, whom Hewart referred to as ‘Shyster’ – and its careful report gave deep and serious consideration to the complaints raised by the Lord Chief Justice while offering a series of specific responses which would allow the existing system to continue. It acknowledged the ‘extreme convenience, from the point of view of those charged with the duty of bringing into effective operation a far reaching measure of reform, of a dispensing power such as that contained in the so-called “Henry VIII clause”.’ But it concluded that ‘it cannot but be regarded as inconsistent with the principles of Parliamentary government that the subordinate law-making authority should be given by the superior law-making authority power to amend a statute which has been passed by the superior authority…’. As far as the run of delegated legislation was concerned, they proposed a structure of parliamentary scrutiny which would only be properly implemented after the Second World War.

In the debates following the report, some voices emerged that were prepared to defend delegated legislation as essential tools of a progressive-minded state, most notably the legal academic, John Willis, whose The Parliamentary Powers of English Government Departments was published in the USA in 1933. Eventually even Hewart would come to accept the necessity of delegation in order to build a welfare state. By the end of the twentieth century delegated legislation had become a normal and accepted feature of the business of Parliament, with much of the machinery eventually set up in response to the Donoughmore report either routine or ignored. Surprisingly, few seem to have complained at the time that the European Communities Act 1972 contained a Henry VIII clause, giving ministers wide powers to amend UK law to make it consistent with the requirements of EU law – Hansard records very few uses of the word in either House during the 1970s. But the concern about Henry VIII clauses would come back with a vengeance in the 1980s and 1990s, largely under conservative administrations this time, and often connected with attempts to remove or tinker with aspects of the regulated state, rather than to build it. Again it was often lawyers who fought it most vigorously: the conservative politician Geoffrey Rippon made it a particular issue in 1988 and 1989, criticising its use in The Children Act, the Local Government and Housing Act 1989, and the Local Government Finance Act 1988. It was the Deregulation and Contracting Out Act of 1994 that brought out the issue most strongly, followed by the Legislative and Regulatory Reform Act 2006 (under the Labour Blair government), which in its pre-enacted form, was widely seen as giving outrageously wide powers to the executive. Both Acts eventually involved the concession of safeguards including new machinery for parliamentary scrutiny of orders made under them. It seems likely that the introduction of the European Union (Withdrawal) bill will continue and extend the debate.

 

Further reading

E.R. Adair, ‘The Statute of Proclamations’, English Historical Review no. 125 (January 1917).

G.R. Elton, ‘Henry VIII’s Act of Proclamations’, English Historical Review no. 295 (April 1960).

M.L. Bush, ‘The Act of Proclamations: A Reinterpretation’, The American Journal of Legal History 27 (1983).

P.R. Roberts, ‘The Henry VIII Clause: Delegated Legislation and the Tudor Principality of Wales’, in Legal Record and Historical Reality, ed. T.G. Watkin (1989).

Michael Taggart, ‘From “Parliamentary Powers” to Privatization: The Chequered History of Delegated Legislation in the Twentieth Century’, The University of Toronto Law Journal 55 (2005).

Geoffrey Rippon, ‘Henry VIII Clauses’, Statute Law Review 10 (1989)

 

 

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Gallery

G is for gallery, where since at least the seventeenth century the presence of members of the public, looking on to the Houses’ debates has been connived at by Members, officially forbidden and in practice tolerated, before, much more recently, it has been actively encouraged. The history of the galleries is closely bound up with the history of the reporting, and the reporters, of parliamentary proceedings.

The House of Commons

Andrew Thrush has described the construction of the first permanent gallery in the House of Commons in 1621.  An earlier gallery had been built in the 1560s, it was said to accommodate members who would insist on wearing the latest fashion of stuffed breeches which took up an inordinate amount of room. It was taken down by the end of the reign of Elizabeth I. The gallery built in 1621, at the western end of the chamber, facing the Speaker’s chair, and reached by a set of stairs referred to as a ‘ladder’ in the 1640s, was intended for the use of Members. It became the favoured outpost of an unruly element in the House. In 1670 the stairs were rebuilt. In the extensive remodelling of the building overseen by Christopher Wren in 1692, new galleries were built along the side walls of the chamber as well as the western end. The side galleries were widened and supported with iron columns topped with Corinthian capitols.

It is probable that even though they were not meant to, ‘strangers’, or members of the public, found it quite easy to get into the galleries (as they did, from time to time, into other parts of the House). As David Hayton describes, although the House forbade the presence of strangers and frequently passed orders concerning their removal, their presence most of the time was tolerated. The gallery was cleared during divisions, or when the speaker’s attention was occasionally drawn to their presence. A more restrictive approach to the admission of strangers to the galleries resulted from the battle with newspapers over reporting the House’s proceedings. Once the House had lost its battle to forbid it, a number of members did their best to prevent it during the 1770s by removing reporters’ access to the gallery. But their views were far from universally held, and some members argued that there were plenty of benefits from public access to the debates: one member commented in 1777 on how valuable it was to step for a minute into the gallery where they could consult with visitors with expertise on whatever subject was currently under debate.

An American visitor in 1805 (Benjamin Silliman) thought the gallery could hold around 150 or 200. The normal way of getting into the gallery was by producing a note signed by a Member – by 1834 Members were said to be able to admit two members a day. The other means of entry was by providing a bribe to one of the doorkeepers, usually 2 shillings and sixpence (half-a-crown). The late eighteenth century German traveller Philip Moritz, describes how he was initially turned away, disappointed, and did not understand the doorkeeper’s comment about a bottle of wine, which his landlady explained when he got home as a request for the half-a-crown pourboire.  A Frenchman living in New York, Louis Simon, described his visit in 1810:

I had an order of admission from a Member of Parliament, but it was easy to perceive that a bank-token (a silver piece worth 5s 6d.) was more welcome to the door-keeper. This payment is done openly, and you may change a bank-note at the door of the gallery of the House of Commons as you would at the door of the playhouse. There is in this an appearance of indelicacy certainly, but the object is to throw some difficulty in the way of mere idle curiosity, and check the concourse of the lower class. This payment of money answers the purpose nearly as well as the necessity of obtaining an order from a member.

Newspaper reporters were usually given favoured treatment, at least by the doorkeepers, paying a guinea or so to secure their places for the whole session. Being in the gallery was clearly a popular entertainment, and the demand for seats was often very high. Silliman commented that the gallery could sometimes be full by 7am even when the House was not expected to meet till 4pm, and might then be sitting all night. ‘After you have once taken your seat, you must actually occupy it all the time, or you are considered as relinquishing it’, he commented, though he said that it was possible to reserve your place by placing a hat on it.

The obligation to keep your seat for so long, or lose it, was no doubt the explanation for the incident in 1743 reported by one member: ‘On Monday, some gentlewomen in our gallery not being able to hold their water, let it run on Mr Dodington, and a Scots member who sat under. The first had a white duffel frock spoiled, the latter almost blinded’ (Thomas, House of Commons in the Eighteenth Century, 148-9). Women were certainly among the people routinely admitted to the gallery in the eighteenth century. It is possible their presence was at least initially regarded as surprising, if not improper, judging from the Speaker’s reaction in 1675: some women being seen in the gallery, ‘peeping over the gentlemen’s shoulders’, he remarked, ‘What Borough do those ladies serve for?’, inviting the response that ‘they serve for the Speaker’s Chamber’, and presumably a jocular suggestion that he had mistaken them for gentlemen with fine sleeves.  The ‘banning’ of women from the chamber in 1778 was a complicated affair, explored by Elaine Chalus in Elite Women in English Political Life c.1754-1790. It came in the context of the battle against publication of parliament’s proceedings by the newspapers and the efforts of several members to exclude the public in order to exclude the reporters. On 2 February a crowd, frustrated by their removal, virtually forced their entry to the gallery; the Speaker ordered them to be cleared, though the women (apparently about 60 of them, including the duchess of Devonshire and the Speaker’s wife, Lady Norton) were initially allowed to stay. But the member who initiated the clearance insisted on their removal as well, and it seems to have been the reaction of the women in the gallery at the time to their eviction, leading to two hours’ uproar and interruption of business, that prevented their readmission, along with the men, afterwards. Though there was no formal order for their exclusion, the clerk of the House John Hatsell wrote in his procedural manual, probably in the 1790s, that subsequent speakers Charles Cornwall and Henry Addington had ensured that they were not admitted. This was not quite true: a handful of elite women did, from time to time, secure entry to the gallery without being ejected, but it seems to have been shortly after the incident in 1778 that the space above the chamber, looking down through the ventilator, was made available for women to use, as described in Amy Galvin-Elliot’s blog for the Vote 100 project.

There are a number of accounts of eighteenth century visits to the gallery of the Commons, including the well-known one of Moritz. The earliest I’ve found is in Eliza Haywood’s satirical political novel, The Invisible Spy of 1754, in which one cynical character, Careless, describes how he had ‘an hour or two upon my hands, and went thither merely to kill time: — but was never more diverted in my whole life, than to see how some young members, who had got their heads together, and were giggling over a copy of verses inscribed to Fanny Murray [the notorious London courtesan], were put to silence in an instant, and look’d as silly as a school-boy under the lash of correction, on the speaker’s crying out with an audible and austere voice, — “To order, gentlemen, — for shame, — to order.” ‘ Careless may have found it amusing, but other visitors were distinctly unimpressed by their view from the gallery. The radical agitator Samuel Bamford described a visit one evening in 1816:

After a tough struggle at elbowing and pushing along a passage, up a narrow staircase, and across a room, I found myself in a small gallery, from whence I looked on a dimly lighted place below.  At the head of the room, or rather den, for such it appeared to me, sat a person in a full loose robe of, I think, scarlet and white.  Above his head were the royal arms, richly gilded; at his feet several men in robes and wigs were writing at a large table, on which lamps were burning, which cast a softened light on a rich ornament like a ponderous sceptre of silver and gold, or what appeared to be so.  …  On each side of this pit-looking place, leaving an open space in the centre of the floor, were some three or four hundreds of the most ordinary-looking men I had ever beheld at one view.

The Scottish army officer, writer and traveller Pryse Lockhart Gordon, recorded frequent visits to the House of Commons around the time of Pitt’s ‘coming into office’ (actually, probably after 1789, as he refers to Addington as Speaker). Having bribed the doorkeeper with a guinea and ‘now and then a bottle of wine’ he found it easy to gain access, and struck up a friendship with the other regular gallery attendees – the journalists, especially the Scotsman James Gray and James Perry, joint owners of the Morning Chronicle. He told a story of one of their reporters, which indicates not just that heavy drinking was a reporters’ stock-in-trade as early as the late eighteenth century. The reporter concerned was Mark Supple, an Irishman who ‘generally drank his wine at Bellamy’s’, and was known for gingering up members’ speeches into flowery prose.

One evening, as Mark sat at his post, during a long conversation on some trifling business not worthy of his notice, there was a long pause in the House. Mr Addington was Speaker; and Supple, who had taken an extra dose of Bellamy’s bee’s wing port, thinking that business ought to be going on, hollowed out lustily—‘Mr Speaker, give us a song.’ Conceive such a man as Addington, whose long, grave, perpendicular countenance was never seen to alter a muscle! Imagine his astonishment and indignation at such an indignity offered to the orders of Parliament, and from the gallery! The House was in a roar, and it was said that both Pitt and Dundas joined in the laugh. When the consternation had a little subsided, the Speaker ordered the mace-bearer to take the audacious culprit into custody, and he came into the gallery for this purpose. Supple sat coolly on the hindmost bench, confident that no one would betray him. The enquiries were fruitless, till the offender pointed with his finger to a fat fellow… sitting on the lower benches. The hint was sufficient; the innocent man, to his great surprise, was taken into custody forthwith; but he vehemently pleaded “not guilty,” and upon the testimony of those who sat near him, was released.

The House of Lords

The gallery in the Lords is another story, though very much a parallel one. The peers were clearly deeply divided about whether to welcome non-members,  though as in the Commons they were much in evidence in and around the chamber – welcome or not – just as commonly as they were in the lower House. The House first erected a gallery in 1704 at the north end of the chamber, opposite the throne, to accommodate people on occasions when the monarch attended. They found it inconvenient, encumbering the entrance to the chamber, and had it removed in 1711. After a number of debates, they eventually agreed in 1737 to reinstate it. Notoriously, the gallery was invaded by a group of very highly-placed women in May 1738, famous from the story in the Letters of Lady Mary Wortley Montagu. The Lords set up a committee in March 1739 to consider the ‘manner in which persons are admitted into the gallery’, and although this does not seem to have reported, in January 1741 it ordered that the gallery be locked up and taken down after the end of the session.

The gallery was indeed removed, but there were plenty of members who wanted it reinstated. On 7 June 1778 the House ordered a new gallery to be erected. In a confused debate on 7 December 1778 it decided not to do so after all. In 1782 a Committee was set up to consider building one. It which recommended a gallery for members of the public, including ladies who applied to the lord great chamberlain, people who had an interest in hearings on private business, MPs and Irish peers . But when the report was debated by the House itself all of its recommendations are rejected. It seems to have taken nearly forty years, a move to another chamber, and a royal divorce before a gallery was established. In 1820 the House agreed to address the king to build galleries for the ‘trial’ of Queen Caroline within the larger chamber to which the House had moved after the Act of Union. Temporary galleries were certainly built (visible in the famous painting by Sir Charles Hayter) . In 1831 the House agreed to replace it with something more permanent. It was probably at this date that special provision was made for women. The journalist Archibald Grant wrote about the arrangement – and the rather more refined atmosphere than in the Commons gallery – in his Random Recollections of the House of Lords: from the Year 1830 to 1836, though by then the chamber had been destroyed by the fire of 1834:

Immediately above the bar was a gallery for the public and the press. It consisted of four seats (i.e., benches) and was capable of accommodating about one hundred persons. The front seat was appropriated exclusively to the reporters. The others were for the public indiscriminately, who had procured Peers’ orders—the only means of admission. Half a crown will procure any one admittance to the gallery of the House of Commons. Fifty pounds will not effect the same object in the gallery of the House of Lords. Gentlemen and others, not knowing the existence of the rule—or not aware of its strict enforcement—have, on various occasions, offered considerable sums for permission to enter; but the decided manner in which the first offer has been refused, has always prevented a second. It was only on the occasions of the trial of Queen Caroline, in 1820, that the gallery of the House of Lords was erected. Previous to that time, strangers stood below the bar; and there the reporters, at great inconvenience, took their notes of the speeches of the members of the House. Some four or five years ago, a small part of the gallery was, by means of a division, allotted exclusively to the ladies. It was only capable of accommodating about twenty with any degree of comfort. On all important occasions it was well filled, chiefly by the immediate relations of Peers…

In speaking of the gallery of the House of Lords, it would be unpardonable to omit the mention f the remarkably obliging disposition, and urbanity of manner, invariably shown towards all who have occasion to be in it, by Mr Maggs, who is entrusted now, as he was in the old edifice with the care of that part of the House. Strangers, when visiting other places sometimes experience uncivil treatment from the officers; but anyone who has been in the gallery of the House of Lords must have quitted it with a grateful sense of the kind and polite deportment of Mr Maggs.

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Franking

‘The Frank’, the privilege of free postage for Members of Parliament, became during the late seventeenth and eighteenth centuries notorious for its abuse, not just by Members, but by virtually everybody else as well.

Royal officials would always have been able to use the crown’s own servants to send messages; but the formal postal system dates from 1635, when Parliament was not in being, and the Civil War in the 1640s would have been difficult ground for the establishment of anything other than very informal arrangements for Members to communicate with their constituencies. The establishment of a free postal service is probably to be dated to the 1650s, when the line to be drawn between state officials and parliamentarians was blurred by the very nature of the parliamentary republic. The lease of the Post Office to John Manley from June 1653 – achieved finally, following long debate, after Cromwell’s dismissal of the Rump Parliament – was confirmed in an ordinance of September 1654. The ordinance made Manley responsible among other things for carrying ‘all ordinary and extraordinary Letters and Dispatches to or from His Highness, and to or from his Council, or Secretary of State, or any of them; and to and from all Members of the Legislative power’, and various other officials. The ordinance specified that such franked letters should  be endorsed with the words ‘These are for the service of His Highness, or for the service of the Common-wealth, together with the names of such persons or their Secretaries or Clerks, who attend them or those services respectively’. Members of Parliament were clearly meant to be included. An order of the House of Commons of 29 September 1656, early in the subsequent Parliament, asserted the continuance of the right.

When, following the collapse of the republic and the Restoration of the Monarchy the post office was placed on a statutory footing, in 1660, there was a debate in the Commons on whether the Act for establishing a post office should include a provision for free postage for Members. The remaining account of the debate makes it clear that some Members were embarrassed about it: Sir Walter Erle, who had been a Member during the 1650s, had introduced the proviso, but the solicitor general, Heneage Finch, thought it a ‘poor mendicant provision, and below the honour of the House’. The proviso was apparently left out by the Lords. However, it seems that assurances had been given that the privilege should continue: in the eighteenth century, the Post Office produced before a committee of the Commons what they called a ‘warrant’ dated 14 May 1661, in which Charles II recognised ‘that the Members of Parliament seemed unwilling to pay for the postage of their letters during the sitting of Parliament’, and permitted their letters (but not packets) to go free of charge. The privilege seems to have applied to both Houses, although there was an assumption that initially at least it was not intended to apply to the Lords.

Abuses were being raised in the House as early as 1666: it was already well-known that other people would use Members’ names on their own letters in order to make them go free. In 1715 the Commons agreed that Members’ letters had to be authenticated in their own handwriting, and (on division) that letters to Members would only be accepted as free if they went to their place of normal residence. The practice of using the privilege to send newspapers was also well-established by then, though why is unclear: perhaps Members had become used to sending manuscript newsletters, a common seventeenth century means of distributing news, to their constituents, and this had been extended to the printed newspapers that became common in the 1690s.

Twenty years later, the House again discussed what was by now a serious problem for the royal revenue. On 16 April 1735 a committee reported to the House on the privilege. The Committee quoted what Edward Cave, who held the office of supervisor of franks, had told them about how he tried to distinguish between legitimate and fraudulent uses of the privilege. He told them that franks were increasing in each Parliament, ‘that as the new Members do, and have a Right to, frank Letters, those who were in the last Parliament do not willingly part with that Privilege, and, by the Acquaintance they still have in the House of Commons, they get blank Franks’ – presumably covers for letters pre-signed by current Members. The Post Office then estimated that it was losing around £38,000 a year – much more than double the loss in 1716 – against a gross revenue of about £91,000, though it conceded that some of the loss was the result of franking in other public offices. The House came to various resolutions asserting its privilege and condemning the abuses of counterfeiting, but took no serious action to regulate it, save specifying that letters should be taken to the lodgings of Members, or to the Lobby of the House, in order presumably to prevent counterfeited franks being picked up by those for whom they were actually intended.

Things had, predictably, got no better by 1764, when another committee on the subject reported that the loss of revenue by 1761 amounted to more than £170,000, with a huge increase in the last two years: ‘while the produce of the pay letters has in the space of fifty years, increased only in the proportion of one to one and an half, the amount of the franks is now sevenfold what it was in the year 1714’. They cited the still growing practice of counterfeiting Members’ signatures; and the trick of sending letters to members of Parliament at fake addresses, where they were picked up by the intended recipients. The secretary to the Post Office complained that it was hampered in its efforts to pursue these frauds ‘for fear of giving offence to the Members’. There was, he said, a trade in the signed covers for letters. The report led to the first statutory regulation of franking, the 1764 Act (4 Geo. III, c. xxiv) limited franked letters to those less than 2 ounces in weight, sent during the sitting of Parliament or for 40 days either side of it, either signed in the Member’s own handwriting (for letters going from the Member), or directed to his usual place of residence, to him directly, or at Parliament, or at the lobby of the House.

The new regulations seem not to have improved things very much. From the 1780s campaigns for economical reform stimulated demands for the abolition of franking. Sir Cecil Wray proposed in 1783 that the recipients should pay for letters sent from Members (‘why should they indulge themselves in the vanity of saving others from paying their taxes?’), though he insisted that Members should not have to pay for the letters they received from their constituents. William Pitt attempted a further regulation in his budget of 1784, trying to prevent anyone other than Members of Parliament benefiting. Sir Edward Astley’s complaint that the reform would be an attempt to ‘render their privilege of sending letters free, sacred to themselves [i.e., to Members of Parliament], and, consequently more invidious and unjust’ seemed rather to identify the problem than contradict it. The end result seems only to have been a modest attempt to tighten the rules, which naturally made little difference.

Another effort to do something about franking was made in 1795, and sparked considerable controversy. Mr Windham insisted that the privilege ‘gave to members a very desirable power of conferring favours on their constituents, and tended to keep up those reciprocations of civility and endearment, which greatly sweetened the intercourse of private life’. In the course of the 1795 debates the old war hero, General Tarleton, attacked another member, the city alderman and banker, Sir Benjamin Hammet, who had delegated his right to sign franks to his son while he was too infirm to do so himself (which was permitted under the 1764 Act). Hammet was in fact notorious for using the privilege to send bills of exchange duty free, and making £2,400 out of it: in the course of the debate it was suggested that some bankers entered Parliament mainly for the purpose of exploiting the privilege. One of Hammet’s defenders, who is inaccurately named in the source as Alderman Newton, but may have been the banker Nathaniel Newnham, questioned  whether ‘other gentlemen had confined themselves strictly to the constitutional object for which the privilege of franking was allowed. For himself, he would own he certainly had not, nor did he believe anyone had; there were many Members of that House who had frequently delegated the privileges of franking to their wives, daughters and other ladies occasionally, and he saw no greater crime or offence in one case than in the other.’ The Act that resulted (35 Geo. III, c. 53) further limited the privilege.

The privilege of free franking would survive until 1839, when its suspension was authorised under 2 & 3 Victoria c. 52, slightly preceding the creation of the penny post system. But its memory lingered on, and when Members began to argue in the 1890s that they ought to be allowed to send letters free to their constituents, the abuses of franking were often referred to as a way of combating the proposal. It took years, and the hugely rising volume of constituency correspondence, before memories of the franking system faded sufficiently for it to be possible to restore a (rather different) right of free postage.

 

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Estimates

E is for Estimates: though nothing could be more central to the role of Parliament, the approval of government expenditure by voting the Estimates has never been a process to make the hearts of Members of Parliament beat faster.

Edmund Burke, who was given to histrionics, once flung a copy of the naval Estimates across the floor of the House of Commons, aiming at the Treasury bench, complaining that ‘it was treating the House with the utmost contempt, to present them with a fine gilt book of Estimates, calculated to a farthing, for purposes to which the money granted was never meant to be applied’. As Peter Thomas observed, in his The House of Commons in the Eighteenth Century, his outrage was also a bit fake: for the gap between the Estimates (especially the naval Estimates) and the reality of government expenditure had long been recognised and tolerated, by Burke as much as anyone else.

Indeed, few things which are so fundamental to the business of an institution have been of so little importance in practice to the vast majority of those involved in it. The Estimates – the planned budgets for government activity in the following year presented annually to the House of Commons – continue to be the basis on which the whole system of parliamentary control of government expenditure rests. The sittings of Parliament have been built around the annual process of agreeing the Estimates in the committee of supply, and voting supplies (i.e., taxes) to cover the cost in the committee of ways and means, with finance bills and appropriation bills brought in to authorise the taxation and expenditure accordingly. But the whole process is a highly complex and technical one, properly understood by only a handful of people in the Treasury, the National Audit Office and the Commons’ Legislation Office. Even in the eighteenth century, the process of voting the Estimates was a routine matter which aroused little interest, and while the debates on supply were throughout the eighteenth and nineteenth centuries among the main arenas for highly-charged political confrontations, the actual detail of the expenditure was almost never the point at issue.

That this was so is in many ways odd, for suspicion that the money voted by Parliament was being misappropriated to purposes other than those intended was frequently an enormous bone of contention in parliaments before the Revolution of 1688-9. The surrender by Parliament to government of just about all initiative in financial matters is one of the most distinctive features of the British post-1689 constitution. By the beginning of the eighteenth century, the process of debating and agreeing the Estimates had settled into a pattern which would remain unaltered until well into the nineteenth century, and of which many traces remain today. The royal speech at the beginning of the session would be responded to by an address from the Commons and a formal vote for granting supply. The House would order that estimates be presented for the navy, the army and the ordnance, usually divided further into an ordinary standing charge and various extraordinary charges (especially during a time of war), and specifying among other things the numbers of troops, sailors and ships to be provided. The estimates duly presented, they were referred to the committee of supply; over a few days the committee would discuss the estimates and pass a series of votes usually specifying that sums ‘not exceeding’ those requested be granted. The resolutions of the committee would be confirmed by the House; and then it was the job of another committee of the whole House, the committee of ways and means, to consider how to raise the money to cover them. The taxes voted would be formally earmarked, or appropriated, to the purposes for which they were requested, in what would eventually become an annual Appropriation Act. The whole process was largely controlled by ministers or those close to them.

Both the accuracy of the estimates and their relationship to the government’s actual expenditure were highly questionable, but rarely investigated. The committee of supply’s scrutiny of the Estimates appears normally to have been desultory. Attempts by the opponents of Sir Robert Walpole to refer the Estimates to a select committee for more detailed scrutiny than they ever received in committee of supply got nowhere in 1730 and 1736. The control of ministers over the process of supply and ways and means had been tight since the mid-1690s, when (as David Hayton has shown in the introduction to The History of Parliament: the House of Commons 1690-1715) attempts by ‘country’ party politicians to claim some toehold over it were squeezed out. The insistence that no request for expenditure would be entertained unless it was recommended by the Crown, first enunciated in a resolution on 11 December 1706, but more familiarly as a standing order passed on 11 June 1713, was a key principle. The reluctance of parliamentarians to exercise any serious control over the Estimates was remarkable, and the reasons for it difficult to pin down. There was, no doubt, an acceptance that governments needed operational flexibility, and (among a House largely composed of landowners) a lack of appetite for the hard work and information required properly to scrutinise the figures. But overall it shows how deeply imbued the House of Commons was with the idea that it was not their role to second-guess the work of a government that commanded the consent of a majority in the House of Commons, however much they might be content to criticise it afterwards.

Crucially this approach has meant that the process of debating the Estimates, at least on the floor of the House, has rarely been used as a means of exercising pressure to increase departmental budgets. It would not be surprising if politicians sought to use the estimates process to argue for parliamentary-funded spending within their constituencies, as certainly happens in the United States. In the early years there is some evidence of that pressure building up. In the 1705-6 Estimates round, for example, the only matter of controversy, or certainly the only division, was over an amount included for replacing army officers’ horses killed in the war. An amendment that the replacements should be as good as those lost – rather than, presumably, any old nag – was defeated. The 1706 resolution and 1716 standing order have effectively closed off the possibility of seeking to get favourable treatment through the Estimates process (though they have not closed off the possibility of lobbying ministers to include expenditure within the Estimates before they ever reach the House of Commons).

From the 1780s onwards a series of reforms ensured that the Estimates gradually became a more accurate representation of the government’s planned expenditure. The development of appropriation accounts – formal government accounts that made it possible to see whether the money voted through the Estimates had been spent for the purposes specified – from the 1830s onwards was particularly significant in improving the quality of the Estimates themselves, and the reforms were clinched by the creation of the Public Accounts Committee in 1861, a body which became a vehicle for further systematic reform. What did not improve was the House’s scrutiny of the Estimates: debates in committee of supply continued to be an opportunity for either general or specific debates on matters within the remit of the department presenting the Estimates, whether or not they had much relation to the funding requested. As a consequence, the debates in committee of supply could become a bog into which the session sank, ministers struggling to hurry the House through and secure the routine, though key, business, before the onset of the summer holidays. The reforms initiated by Arthur Balfour, as chancellor of the exchequer, in 1896, would acknowledge that the process was no longer any more than formally about the detail of expenditure, beginning a process of conversion of the business of the committee of supply into the ‘Opposition Day’ debates that they subsequently became. Attempts to delegate to select committees a process of detailed scrutiny – such as had been rejected in the 1730s – would preoccupy parliamentary reformers in the twentieth century, and eventually bore fruit in the 1970s in the select committee ‘system’. This, and other changes, have considerably enhanced the transparency of government estimates and accounts, and the influence wielded by Parliament and its bodies on developing them. But the aim to enhance inspection of the Estimates continues to be less important for these committees than the opportunity to discuss departmental policy more generally; and Parliament’s control over government expenditure continues to be, in comparison to many other legislatures, relatively weak.

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Doorkeepers

D is for Doorkeepers, not only an essential oil in the wheels of the House of Commons, but also part of its collective memory. Today’s blog begins to pin down the history of a role that has become a Westminster institution.

Doorkeepers oil the wheels of the House of Commons.  The role is an ancient one, but impossible to pin down, and hardly unique: in the seventeenth or eighteenth centuries most institutions or great establishments had a doorkeeper or porter, just as offices and buildings today have receptionists or caretakers. But doorkeepers in Parliament are an institution in themselves.  They complement the police in providing security for the chamber – their knowledge of Members crucial in knowing whom to exclude; they pass messages to Members; and most importantly, they are the repositories of gossip and the fount of wisdom on what is actually going on.

The role is referred to in the fourteenth century treatise on Parliament, the Modus Tenendi Parliamentum, which remarks that ‘it is necessary that this doorkeeper should recognize those who ought to enter so that no-one shall be denied entry to parliament who ought to be in parliament’. In the small and chaotically organised pre-1834 Palace of Westminster ensuring that only Members had access to the chamber itself was a hard task for the two main doorkeepers who sat in the lobby and the lower doorkeeper who guarded the stairs leading up to it. Doorkeepers had to cope with volatile and potentially dangerous situations, such as the invasion of the chamber in January 1642 by the king and a band of soldiers, when they were roughly shoved out of the way, or the mass occupation of the lobby in 1780 by a mob egged on by Lord George Gordon.

Their crucial function of holding and passing on information is well outlined in the sketch of the legendary eighteenth century doorkeeper Joseph Pearson, published in the (possibly spoof) collection of his writings, Pearson’s Political Dictionary (1792), a vaguely Johnsonian series of brief essays providing a cynical commentary on current politics with sarcastic remarks on the major figures. Pearson was said to have had

such an astonishing portion of keen observation, that he could pretty nearly foretell the period of the termination of every debate, when once it commenced. By the thronging of the Members he foresaw, and nicely calculated its magnitude: By the opening of the first speaker, and the peculiarity of the subject, he guessed pretty accurately all the orators of the night; and knowing the time nearly that each would speak, he has often prognosticated to Peers, guttling Members, waiters, porters, &c. who enquired of him what time he thought the House would break up.

But eighteenth-century doorkeepers were known not so much for their remarkable prescience as for their shamelessness in asking for money. Doorkeepers had several sources of income. There was a salary, but more significant were the various fees payable on the introduction of bills, the delivery of messages on behalf of the House, and other functions. More important than any of these officially sanctioned sources were the gratuities that they requested from each Member at the beginning of the session, and the sums paid by members of the public for access to the gallery from where they could watch the debates. Neither exaction was authorised by the House, but both seemed to be hallowed by long practice. There may have been additional underhand payments too, which would probably have been less tolerated, perhaps for squeezing people into the lobby to get close to ministers, or for distributing certain papers (an example is the pamphlet which the House regarded as libellous that was ‘delivered at the door by the Doorkeeper’ on 14 May 1690).

Members seemed in general accepting of the sessional payment that was extracted from them by the doorkeepers, though some resented it and they could resist it, as in a story about the old Tory MP for Durham William Lambton, who died in 1724:

Once on the meeting of a new parliament, the door-keeper seeing him dressed in a plain, grey, home-spun coat, made of the wool of his own sheep, and thick shoes, would not admit him further than the lobby, where he sat quietly enough until a friend in a finer coat came up, who remonstrated with the door-keeper on his shutting out one of the most honourable and respectable members of the house of commons. The door-keeper changed his tone, and hoped his honour would give him something as a remembrance. Up started Will, more vexed at the fellow’s servility than at his former rudeness, and gave him a hearty box on the ear, saying, “there’s a god’s-penny for thee; I think thou’lt ken auld Will Lambton again!”

Rudeness was also thought to be a common trait of doorkeepers. An 1804 satire, designed as a political alphabet, shows a surly doorkeeper, ensconced in his  characteristic seat with its hood protecting him from draughts, and with his dog, expecting his ‘tenths’.  The perception may have been based on the legendarily rude Pearson, ‘a plain, blunt, honest man, … so far a leveller, that, if the proudest Peer in the realm addressed him with the smallest degree of haughtiness, he was certain, in return, to meet with a very sharp and ungracious answer’. He was said to use his powers over the seating in the gallery according to his own whim. He was notorious for outrageously embarrassing reluctant Members to cough up his gratuity, in which he seems to have had the sympathy of plenty of their colleagues.  A story was told of the Speaker, Sir Fletcher Norton, routinely referring to him as ‘the most impudent person breathing’; Pearson returned the compliment.

Nevertheless, doorkeepers could make a lot of money. An 1836 committee report itemised the income of the head doorkeeper, Mr Pratt, in 1835 as £1097, made up of a paltry salary of £50, £50 in perks and £85 in emoluments, plus £318 in (official) fees, and a whopping £593 in gratuities. The amount rivalled that of some quite senior government officials. Pratt’s colleague, Francis Williams, the second doorkeeper, received a lower salary, but the same amount in fees and gratuities. The 1836 committee had asked questions about the origins and status of the doorkeepers and found that they had usually been servants, which perhaps made the scale of their income harder to take. When one of their predecessors, a Mr J. Kennedy, died in 1825 at his residence in Marsham Street, he was said to have ‘amassed a considerable fortune, and had large estates in his native country in Wales’; the obituary remarked on his long-term friendship with the lord chief baron of the exchequer, despite the difference in their positions. Kennedy’s office, it noted jealously, was ‘a place of great emolument’. Kennedy had probably purchased his position from its previous incumbent, as certainly was the case with some doorkeepers still in post ten years later.

With the attack on the sinecurist state of the early nineteenth century, such an informal and potentially corrupt means of remunerating the House of Commons’ security service seemed no longer appropriate, and replacing the gratuity system with a better salary was high on the agenda of reformers such as the indefatigable scourge of waste and ‘old corruption’ Joseph Hume. With fees already transferred to a ‘fee fund’ which would support collectively the House of Commons staff, committees in the 1830s examined in some detail the appointment and emoluments of the doorkeepers, discussed the irritation felt by some Members at the request for gratuities, and proposed a new scale of salaries for the door keepers (their proposal, of £300 for the first door keeper, must have represented a considerable reduction in the income from the post.

The replacement of fees and gratuities for a simple salary may have resulted in a better reputation for the doorkeepers, who as a result of long service and the value of their collective memory and knowledge, were often much respected figures. William White (1807-82), who retired in 1875, remarkably from 1859 wrote a regular column for the Illustrated Times, later republished  with an introduction by the Irish Nationalist MP, Justin McCarthy, as The Inner Life of the House of Commons. The success of the column – one of the earliest efforts at regular ‘sketch writing’ – showed White as a generally fond commentator on the ways of the House, though some Members did not escape teasing. The later nineteenth-century doorkeepers indeed retained the ghost of Pearson’s contempt for his masters. On his retirement in 1896 (after a career going back to 1859) Mr Jennings gave an interview to the newspapers whom he told that though Members ‘may be got up more carefully than formerly… there is not that independence of thought and practical knowledge about them’ that there used to be. He ‘makes little attempt to disguise his conviction that the House is almost hopeless as a business body so long as it is run on its present lines’. It was a line that emphasized the role of the doorkeepers not only in providing information on what was going on, but also in acting as part of the collective memory of the House: a memory that often tended to hark back to the greater days, and greater Members, of the past.

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Candles

C is for lots of parliamentary things: committees, chairs and conferences, but also for candles, which in Parliament have been the instrument of darkness, as well as a method of illumination, and whose abolition in 1718 was perhaps the first successful attempt at procedural reform….

A Letter from an Ejected Member of the House of Commons, a tremendous polemic against the iniquities of the Long Parliament, addressed to Sir John Evelyn in 1648, vehemently attacked its ‘long debates, which sometimes held from morning till night, and then almost from night till morning agen, [and] looked little better then great brawles: and when the people supposed their Gallant wise Members were very busie, and took great paines, to sit up late anights, making them good Lawes, they were then altogether by the ears perhaps, and drawing Swords, about the Candles’.

The author (probably the Dorset MP Giles Strangwayes) was referring to the motion to bring in candles, which had, over the past seven years (and especially the in the course of the fraught politics of the years 1646, 1647 and 1648) suddenly become an essential component of the procedural armoury, a weapon that could be used to divert or delay debate, or even halt it entirely. It was initiated, it seems, in the course of a bitter debate in the late evening of 8 June 1641, which Strangwayes may well have had in mind. It was almost a month after the execution of the king’s right-hand man, Thomas Wentworth, the earl of Strafford, after a bitter series of debates and mounting popular pressure forced the king’s deeply reluctant acceptance of Strafford’s attainder bill. On 8 June the House were hearing the report of a committee established to investigate what would become known as the army plot, an alleged conspiracy – very close to the king – to use the military to suppress Parliament. There was uproar in the chamber as the House debated whether two of those involved should withdraw from the House: in the end both withdrew, and then, wrote the diarist Sir Simonds D’Ewes, ‘a long dispute or debate followed touching their censure which was prosecuted with so much heat and animosity on both sides as the Speaker could scarce direct who should speak, we sitting so long that it began to grow dark, whereupon the House did at last rise in confusion’.  Other sources indicate that the final uproar came around nine o’clock, when the serjeant at arms came in with candles to illuminate a chamber which must have been getting dark.

The following day complaints were made against two members, Herbert Price and Sir William Widdrington, both future royalists. The two had, it was alleged, violently seized the candles from the hands of the serjeant ‘when there was no general command in the House for the bringing of candles in but a great sense of the House went for rising, it being so very late’. Herbert Price claimed that candles had been ‘called for and brought in’, but when he found out that it was likely that they would be taken out again, he ‘stepped out of his place to the Serjeant, and took one of the canles from him, and set it on the House floor that it might have been of use to all’. It was said that others had tried to push the serjeant out of the House when he was bringing in the candles, and Sir John Hotham confessed that he had told him that he ought not to bring in lights without the order of the House. The Speaker remarked that he had not expected to get out of the House alive. It was generally agreed that ‘the serjeant ought not to bring in lights without the consent and order of the House’. Widdrington, when he finally turned up, agreed that he had taken the candle from the Speaker ‘desiring to hold it that himself might be seen because he intended to speak’. The two ended up in the Tower for a week or two before being released.

The incident suggests that previously it was assumed that the House would formally order candles to be brought in when necessary: however, the journal records no such order before June 1641, so it must have been a matter of routine. Thereafter, as tensions rose even higher, the request for candles was treated with much greater formality. On 15 December, when the House was urged to vote to print the great listing of the iniquities of Charles I’s regime, the Remonstrance, ‘it growing so dark as the clerk could not see to write divers moved to have candles brought in’, there was a division over the motion.

Motions for candles became common during 1646-8, following Parliament’s victory in the Civil War, as the House of Commons broke into factions that struggled over the fate of the king. The procedure is noted in the journal once more in 1642, again in 1645. But candles were called for on six occasions in 1646 (four of them in December); nine in 1647; eight in 1648 and six in 1649 – always in the context of bitterly argued, partisan debates. And their use reached their apogee in November-December 1654, during the debates on the Instrument of Government, the constitution for the Cromwellian Protectorate. Between 10 November 1654 and 4 January 1655 candles were moved for 12 times, on 5 occasions provoking a division.

The device of calling for candles was by then regarded as manipulative and underhand, a way of perverting the normal course of debate. With London poorly lit, and in a House which was accustomed to sit early in the morning – seven, eight or nine o’clock were the usual hours for the beginning of business, although a tendency would shortly become visible for the time of beginning to become stretched later and later – sitting late into the night was not only unusual, but, if too often repeated, impractical and unbearable. There was pressure to put off business to another day, if it seemed likely to be extended after the hours of darkness. ‘I never knew good of candles’, said Sir Arthur Haselrig in March 1659. Nevertheless, it rapidly became a normal, if disliked, aspect of Commons procedure. By the 1690s it was seen as a way in which an organised court could divert difficult questions: one pamphleteer complained of ‘the scandalous way of putting the question for candles, and carrying it in the negative’, in order to prevent the Commons from carrying out an attack against a government minister. (Considerations upon the Choice of a Speaker (1698), p. 7).

This suggests that the effect of an unsuccessful motion for candles was that it stopped a debate short and made no provision for it to be taken up again on another day – in effect, the debate was adjourned sine die, a way of killing it off. Journal entries for days on which the motion for candles was negatived do suggest just that: that the House carried out no further business once it decided not to bring in candles (though in a number of cases there was an attempt to set a date for when the business could be resumed). Conversely, if a motion for candles was passed, it could act as a proxy for a vote on the business itself, and lead to a quick abandonment of resistance by the losing side, once they recognised that the supporters of the business concerned had a majority to carry it through the night. At least early on there was plenty of confusion about what was and was not the effect of calling for candles – it was claimed in 1675 that ‘one candle may always be on the table, when it grows dark, without a Question, and at a division, that you may see who goes out, and who in’.

The business of candles ended almost as abruptly as it started. On 6 February 1718 the House declared that ‘when the House, or any Committee of the whole House, shall be sitting, and daylight be shut in, that the Serjeant at Arms attending this House do take care, that Candles be brought in, without any particular Order for that Purpose’. And that was that: the House never again ordered that candles be brought in, for the first time – and the last time for long afterwards – removing a procedural obstacle that obstructed the House in its day to day business. It’s difficult to say why it was stopped: I’ve found no discussion surrounding the change, and the House had been routinely ordering candles to be brought in (two occasions in 1717, three in 1716, and so on). Perhaps one explanation might be the tendency of the House of sit later in the day, a process which may have meant that the need for candles was no longer an exceptional occurrence, though if that was so, one might have expected that over the previous twenty years the number of occasions on which candles were called for would have been steadily growing, whereas they seem to have been stable. Or perhaps it was because a House in a rather less charged period of party competition had come to see that a motion to switch on the light was a patent absurdity.

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Ballots

I began my A-Z of parliamentary history a couple of weeks ago with ‘Applause’. There were many options for ‘B’. The most obvious – bills – is far too big a subject to deal with in a blog. I thought the ballot would be a much easier proposition: it has turned out (of course) to be far more complicated than I had imagined. And I’ve barely mentioned the Lords…

We often think of elections by secret ballot as a relatively modern practice, one of the key Chartist demands, eventually conceded in 1872, a major element of the system of parliamentary elections we have today. We less commonly think of its use within the House of Commons itself. The word is currently used to describe two different processes in the Commons. The first is the procedure used for the election of senior office holders – the Speaker, deputy speakers and select committee chairs. The second is that for the allocation of time on the floor of the House for the debating of private members’ bills under Standing Order 14 (10) – a system which outside Parliament is more likely to be referred to as a sort of lottery, something like a raffle or the tombola at the village fete (though, of course, Members do not pay to enter). In the Lords the ballot is used for the election of the lord speaker, and for the by-elections of hereditary peers (though the electorate is, of course, external to the House).

We also rarely recognise just how old the ballot is. For the ballot as a means of decision-making, either as a form of election or as a means of allocating benefits, has its origins in antiquity. It’s often a surprise to discover that secret voting, including by ballot, was not unusual in medieval England either. There are many examples of secret voting in municipal elections from the fourteenth century onwards. Here’s an example from Oxford in the sixteenth century and another from Barnstaple in the seventeenth. A 1607 charter required the use of the secret ballot at Pontefract (which, coincidentally, is where the ballot was first used for parliamentary elections under the 1872 act). Some of the trading companies and corporations set up around this period favoured secret voting by ballot, apparently to the disapproval of Charles I, who forbade the practice for any company in the City of London in 1637. No doubt election by ballot was the most convenient way of taking contested decisions (particularly the choice of officers) in such commercial organisations; and presumably the crown disliked it because it meant that they were less easily pressured into compliance with its wishes. The king’s disapproval may suggest some more specifically political undertones to the choice of the ballot. Balloting was famous from its use in Venice, described most fully by Gasparo Contarini in the book published in English translation in 1599 as The Commonwealth and Government of Venice (De Magistratibus). Venice was deeply admired not only for its wealth and strength, but for the remarkable effectiveness of a government in which power was widely distributed and yet corruption allegedly unknown: the orderly silence in which the election of its officials took place was seen as one of the essential ways in which faction was prevented and independence preserved. James Harrington’s essay setting out an imagined republican constitution for England, Oceana, published in 1656, contained an appendix describing ‘the manner of the Venetian ballot (a thing as difficult in discourse or writing, as facile in practice) according to the use of it in Oceana’.

Balloting for jobs

This connection with democracy and republicanism might be part of the reason why balloting was adopted by the House of Commons following the execution of Charles I and the establishment of the republic. There was, it seems, a false start just after Parliament’s victory in the Civil War, on 10 October 1646, when, a motion that a committee charged with considering army commissions should also ‘consider of a balloting-box, and the use of it’ (presumably for making decisions about who would be appointed) was narrowly defeated. But in February 1650, a year after Parliament executed the king, the ballot was adopted by the new republic as the way of constituting its council of state, the executive that operated with delegated power from the House of Commons. The proposal was controversial, for there was a division on it, but the ballot would become an annual ritual during the Commonwealth. The rules were, thankfully, considerably less elaborate than those used in Harrington’s republic of Oceana, though complex enough. Notice was to be given a day before of the hour of the election. When the election took place, the doors were to be shut and no-one allowed to leave or enter. All members would be counted. Then every Member should write his choice of four names on a piece of paper, and the clerk of the House would go round the House collecting the papers in a ‘vessel’. Four of those who were already members of the council would act as tellers and would work out which four had received the greatest number of nominations. The winners would then be put to the House for approval. If there was a tie, the names of those with equal number of votes would be drawn out by lot and then put to the House in turn. An attempt to make each ballot paper identifiable was defeated.

After the Restoration, balloting fell into disuse, probably because the House no longer made appointments to significant offices, other than the speakership itself. Balloting was revived, however, after the Revolution of 1688-9. It’s tempting to attribute this, again, to a Whiggish preference for a system so strongly associated with a republic. It was used specifically for appointments to paid positions, established under statutory authority, that were regarded as particularly sensitive in political terms. On 19 May 1690, the Commons debated the appointment of a slate of commissioners to be named in a bill for taking the public accounts since 1688. The House decided that there should be nine commissioners and that every member of the House should draw up their own list of nine people to be put into a ‘glass at the table tomorrow morning at eleven of the clock’. A motion that each member should put his name on his paper was rejected, as it had been in 1650. From then on, the ballot was generally used when commissioners from the Commons were to be appointed to undertake various functions under statute, often inquiries into the public accounts. They were much fewer after 1715, but commissions were balloted on an annual basis after 1786 to serve as a court of appeal for offences committed in the East Indies.

Balloting for committees

But if statutory commissions became less common after 1715, balloting acquired a new function, as the means of nominating some House of Commons select committees. It was adopted initially for the appointment of committees with a particular requirement of confidentiality, ‘committees of secrecy’. The first was on 9 April 1715, when a committee of secrecy was appointed to examine books and papers about the negotiation of the peace with France and Spain in 1713. It was clearly intended by a new government in power to dig up material designed to compromise, and perhaps impeach, their predecessors and rivals. Similar committees were appointed in the same way to enquire into the conduct of the Earl of Orford – Sir Robert Walpole, the former prime minister – in 1742, shortly after his removal, and to enquire into the state of the East India Company in 1772. Some committees were appointed by ballot which were not described as committees of secrecy, but they were also on highly political business, such as that to inquire into the failure of the South Sea Company in January 1721. At some point (the new system is first referred to in 1742) the procedure was changed, so that instead of the clerks going round the House collecting the lists, members would come up to the table and place them into ‘Glasses’.

Why was balloting used for such bodies? The ostensible reason must have been to deter faction: this was seen as its great virtue in Venice, where it was supposed to result in matters likely to split the political world deeply being handled discreetly, and with little apparent factional bitterness. The real reason was probably precisely the opposite. It can be glimpsed in the incident in February 1786 before the ballot for members of the committee of appeals for offences committed in India, when notice was taken of a list of members being delivered in at the door of the House, presumably designed to influence members in preparing their own lists. It is even more apparent in the debate which led to the appointment of the last balloted select committee of major significance. In 1805 the tenth report of the commission of naval enquiry, a body set up by William Pitt years before as a clean government measure, produced evidence of either corruption or extreme carelessness against his key ally Henry Dundas, Lord Melville. After the Whig MP Samuel Whitbread had secured the passage of a series of resolutions critical of the administration and censuring Melville on 8 April, he demanded that a select committee to look further into the findings of the committee. When he proposed a list of members for the committee, Pitt objected, and proposed that the committee be named by ballot instead. Charles James Fox immediately

expressed his astonishment, that on a subject of such moment the right hon. gent. should resort to this mode. Nothing but the most perfect publicity could satisfy the ends of justice, or convince the public that they were in earnest. He said, that it was perfectly understood that a select committee of 21, if chosen by ballot, was a committee of persons who, somehow or another, spoke the sentiments of the minister, and if this were chosen in that way, jealousy and distrust would be the consequence; that this was a committee to try the ministers themselves, and that it was a monstrous thing that it should be nominated in a way that would countenance the supposition of influence.

Pitt, however, prevailed, and a committee was appointed in the traditional way on the following day, despite Whitbread’s report of a ‘very confident rumour’ that

notwithstanding all the apparent fairness and impartiality of a ballot, … the names to be returned upon the committee were pre-determined by the minister; by which the business of the ballot was converted into a solemn mockery, and rendered wholly nugatory as to the obvious intentions of the house. A list of those names had been this day put into his hand, which he would now read in his place.

They were all ministerial nominees. After further dispute, Whitbread proposed a motion ‘That it is a high breach of the privileges of this house, to circulate lists nominating persons to be chosen on any committee by ballot’. It was voted down by a solid ministerial majority.

So curiously, balloting, far from being a way of overcoming influence, turned out to be a way of disguising it: governments had found ways of discreetly ensuring that their nominees were appointed by circulating among their supporters a list of their preferred members. Its opponents were presumably, at this stage, incapable of the organisational effort required to do the same. The Melville affair wasn’t the end of the balloting system, as several further select committees were appointed in 1805. But the only ordinary select committees that were appointed by ballot after 1805 seem to have been a couple to do with election abuses, and only a handful of committees of secrecy were subsequently appointed by ballot, in 1817-19.

The Ballot and Elections

It might have declined for these sort of committees, but the ballot was by then entrenched in the procedures for the determining of election petitions. Initially the ballot was proposed as a way of introducing secret voting on propositions put to the House. These were complaints challenging the outcome and conduct of individual elections, on which the House of Commons itself was accustomed to adjudicate. They were the subject of bitterly fought partisan battles, particularly in the earliest years of the eighteenth century when the struggle between Whigs and Tories was at its most virulent. In January 1708 the Commons made an attempt at reform, setting up a committee to ‘consider of methods for the more speedy and easy trying and determining of controverted elections’. Among its conclusions was that ‘all questions at the trial of elections shall, if any member insist upon it, be determined by ballot’. When the committee was asked to consider how this would work, intriguingly, Robert Molesworth was added to the committee. Molesworth’s uncompromising advocacy of the virtues of old republican government was well known from his attacks of corruption in contemporary Scandinavia, An Account of Denmark, though his denunciation of political party and faction did not prevent him from becoming one of its principal agents. It’s not known, however, whether Molesworth was in any way responsible for the system that the committee recommended. This involved a balloting box and balls. One clerk would carry the box around the House while the other handed the balls to the members; two members of the House, appointed by the Speaker, would go around with them, and every Member present would be offered the balls. Each of them would ‘present his Hand bare and open, to receive the Ball, and … hold it up between his Finger and Thumb, before he put his Hand into the Box’. Then the votes would be counted and the result declared. The procedure was agreed to, though only on a narrow vote. It was tried for the first time only a few days later, on 26 February 1708, in proceedings on the election for Ashburton in Devon. It did not, however, last. I can’t find another instance of it being used, and at the beginning of the next session, on 22 November 1708, a motion that any motions on election petitions should be determined by Ballot ‘if any Member insists upon it’ was proposed and narrowly rejected. When the same motion was proposed again in the new Parliament of 1710, it was thrown out by an enormous majority. Perhaps this highly Tory Parliament sensed its Whiggish and republican associations.

Balloting though did come back, as part of an elaborate system created in statute for dealing with election petitions under what was known as ‘Grenville’s Act’ of 1770, and its successor of 1771. This time the ballot was used not to take decisions on the floor of the House, but in order to select the members of the committee that would hear each case. This system was first used on 11 December 1770, to appoint a select committee on the recent by-election at New Shoreham, Sussex. Unlike the ballots for the appointment of commissioners or select committees, however, this was not an election, but essentially a lot. The procedure was set out in extraordinarily specific detail in the original Act. All members in the vicinity were summoned to return to the House; the Speaker then counted the number of members in the House to ensure that the required quorum was present. With the petitioner, his counsel and agents attending at the bar, a box containing slips of paper on which were written the names of each Member of the House was placed on the table, with elaborate precautions designed to ensure that it had not been tampered with. The pieces of paper were removed and placed in equal numbers into six glasses, which were then shaken up. The clerk then ‘publicly drew out of the said six glasses, alternately, the said pieces of paper’, and gave them to the speaker, who read them out. Forty-nine names were drawn out. Then the counsel and petitioner were called upon to nominate one from among the members whose names had not been drawn, to be added to those chosen by lot. After this the counsel for both sides would then go out of the House and alternately strike off names, until the list was whittled down to a total of 15.

This system was in operation for nearly 60 years (although in 1829 the number of names to be drawn from the ballot was reduced to 33), but by the early nineteenth century it was seen as just as bad as its predecessors. The balloting element was not the only problem, but it was certainly one of them. The process by which names were struck out of the lists was particularly open to abuse, as each side would remove those they reckoned most likely to challenge their case. The result was commonly referred to as ‘knocking out the brains of a committee’. In a way that is difficult to piece together, this seems to have become a process in which the parties were intimately involved; party whips would customarily pressure the members on their side to attend in order to weight the odds on their side. It was widely acknowledged to be an appalling display, with the election committees as collections of men ‘of men whom neither honour, virtue, nor their oaths could bind when their political bias was engaged’. As with its use for the appointment of committees, the ballot, so generally seen as a means of protecting decision-making from illicit influence, had instead become associated with the operation of party, with abuse and corruption.

New legislation for determining election appeals was passed in 1839, which got rid of the balloting system – ironically, just at about the same time as the House of Commons was at the receiving end of a torrent of petitions demanding the use of the ballot in parliamentary elections. It wasn’t the end of balloting in the Commons either, for despite the poor reputation of the system for establishing election committees, around the same time it began to be used in procedures for dealing with private bills and for allocating the increasingly limited amount of time available to private members. By the twentieth century the ballot for private members’ bills was a major event in the annual parliamentary calendar. But this blog is already far too long, and that will have to wait for another day…

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