Paid advocacy in the House of Commons and the Resolution of 2 May 1695

In the recent debates over the report of the Standards and Privileges committee on the Owen Paterson case frequent reference has been made to the House of Commons’ foundational resolution of 2 May 1695 on lobbying. The resolution runs as follows: That the Offer of any Money, or other Advantage, to any Member of Parliament, for the promoting of any Matter whatsoever, depending, or to be transacted, in Parliament, is a high Crime and Misdemeanor, and tends to the Subversion of the English Constitution.

The resolution was clearly concerned with offering money to a member of Parliament rather than receiving it: it was aimed at the person doing the bribing, rather than at the person bribed. It is usually assumed to have had something to do with the action taken against the Speaker, Sir John Trevor , who was voted guilty of a ‘high crime and misdemeanour’ and expelled from the House of Commons on 16 March 1695 as a result of the revelations concerning the City of London Orphans’ Fund bill. The fund was a supposedly copper-bottomed repository for legacies provided for the maintenance of orphans, which turned into a welcome solution for the City’s financial problems throughout the seventeenth century. Their juggling started to collapse in the 1680s. They looked to Parliament for help in sorting the problem out, although many MPs (especially Tory ones) were deeply unsympathetic. Their success in securing legislation in 1694 without (as they had feared) being required to sell a large amount of the property only through effective mobilisation of their whig supporters in the Commons and by keeping the bill moving through expeditiously through a series of bribes. A thousand guineas went . to the Speaker, Sir John Trevor in June 1694; a much smaller amount (20 guineas) went to the chairman of the committee on the bill, John Hungerford. Hungerford was also voted on 26 March 1695 to be guilty of a ‘high crime and misdemeanour’ in accepting the money and was expelled as well.

The 2 May resolution might equally have been occasioned by the parallel inquiry and scandal over the affairs of the East India Company: the efforts of its governing body to secure a new charter in the course of 1694 were, it was revealed in a lengthy and aggressive inquiry in April and May 1695, also backed by extensive cash handouts, including to Trevor, but also an even bigger fish, the Duke of Leeds. The Commons was already in the process of impeaching Leeds and was talking about impeaching Trevor too when the king prorogued parliament on 3 May. And there was also the case of the Treasury Secretary, Henry Guy , who was finally brought down in January 1695 by revelations that he had accepted a cut of 200 guineas from an agent for unpaid army officers for help in procuring their money. Guy was sent to the Tower, which may have been the safest place to be; unlike Trevor and Hungerford he escaped formal expulsion and continued to be lucratively active in government

The apparent explosion of the issue of corruption in parliament in 1695 had much to do with the particularly vicious complexion of party politics at the time. In some ways it is surprising that the anger should be focused on the speaker, because it had been well known for years that the speaker was entitled to fees from the passage of private bills. The sums received by Trevor, though, were way above the normal fees, and taking money to advocate a cause in parliament or at court was certainly considered to be a corrupt practice long before 1695, though it was rarely pursued. Lawyers were frequently suspected to be operating in parliament as paid advocates, and probably they often were. A committee was set up to investigate a complaint in 1571 about men who were said to have received fees for preferring or speaking to bills, though it seems never to have reported; and in a few years latter one of the lawyers who spoke in a debate on a bill concerning cloth made a point of denying that he was paid: ‘I am not fee’d I speak my conscience and I think so of every man here’. The notorious maverick member Arthur Hall around the time attacked in print members who indulged in ‘this most filthy, unnatural and servile vice, which shall for a few angels make you plead as partially in parliament as in any other court, not regarding your country, but the jinks in your pocket’. (Hall’s generously broad abuse of the House of Commons ended up in his own expulsion). A late sixteenth century note explains that ‘private bills are usually drawn by counsellors of law not being of the House, and sometimes by those of the House, and that for their fees; which, howsoever it hath by divers been held to be lawful, yet cannot be but very inconvenient, seeing afterwards they are to be judges in the same case’. In 1604 the unpleasantly creative lawyer, William Tipper, was accused of trying to bribe MPs to pass a bill concerning the hat production industry: the member who defended him (Sir Henry Beaumont   ) ; and the member (Sir Charles Cornwallis) who advised him not to respond to a committee’s demand for him to attend a committee were perhaps among those who had benefited.

All of which suggests that while paid advocacy was regarded with deep distaste, members either found it difficult to pin down, or were unwilling actually to do anything about it – possibly both. The major inquiries into the dubious activities of members in the 1620s and their consequent expulsion  (Giles Mompesson and Sir John Bennet ) related in the one case, to their own business activities, and in the other, to corruption as a civil law judge in the prerogative court of Canterbury, rather than to acting in parliament as an advocate on someone else’s behalf. When in November 1667 the Commons did take action against John Ashburnham, who was expelled from the House   because he had taken £500 from French wine merchants in order to promote their petition at court for an import licence, it is quite likely to have been a political move connected to the efforts to impeach the lord chancellor, the Earl of Clarendon, rather than the result of a sudden fit of moral rectitude. One of Clarendon’s allies, Henry Coventry, said years later that there had been no law against what he had done; ‘He was no judge, and you judged that taking a bribe’.

Enforcement of the 1695 resolution was probably lax – indeed, non-existent. There were many members of the eighteenth century House of Commons who were acting as paid agents for various organisations, not least the various Crown colonies, and who were promoting their interests in parliament. Among them was William Huskisson, who acted between 1799 and 1823 as agent for the Cape of Good Hope and Ceylon, even while holding a job in the government (as commissioner of woods and forests: Huskisson had to defend himself from an accusation of diverting government money to Ceylon in 1817  ). Although occasionally this was raised as an issue, including in 1836 , The compilation of House of Commons procedure created in the late eighteenth century by John Hatsell, Precedents of Proceedings in the House of Commons, first published in 1775, seems, as far as I can tell, not to have mentioned the 1695 resolution at all. Hatsell commented in relation to another long-established rule on members’ interests, that members who had a private interest in a bill or other matter depending in the House should avoid voting on it, that ‘in matters of lesser importance, yet where the private interest of the Member has been essentially concerned, it has been entirely neglected, contrary only to the laws of decency, but of justice.’

Thomas Erskine May’s Treatise, first published in 1844, however, did draw attention to the resolution: it’s not clear whether this was because of some heightened awareness of the issue, or if so, why. One might guess that the trend towards the establishment of business organisations and employers’ associations in the late eighteenth and early nineteenth century might have created an anxiety that advocacy of this kind was either growing or very likely to grow; but most significant was probably the mushrooming lobbying activities of the railway companies in the late 1830s and early 1840s, including the organisation of an industry body in 1839, the Railway Society, and the campaign of 1844 against the government’s proposals for the regulation of the railways.

The main concern then, though, involved railway directors themselves becoming MPs, rather than business organisations distributing money among legislators. The paid advocacy rule was mainly thought of in terms of lawyers. It was discussed in the mid-nineteenth century in relation to the allegation that Isaac Butt (well before his leadership of he Irish Home Rule League) had accepted money under an agreement with the Indian Prince, Ameer Ali Moorad Khan, that he would ‘advocate and prosecute in the House of Commons, with Her Majesty’s Government, and the Honourable East India Company, the claims of his Highness for the recovery of his territory, of which he had been deprived by annexation by the Honourable East India Company’. The claim was considered by a committee, which accepted that there had been an agreement and money had been paid, but rejected the claim that the payments ‘had any reference to proceedings in Parliament’. Despite the exoneration of Butt, the case raised considerable unease about how wealthy clients would pay lawyers who were also MPs to fight their case in the courts, and also expect them to support them in the House of Commons. legal members of the House ‘being retained in a regular manner for the discharge of duties in a court of law, and then, instead of taking the cases in which they have been thus retained into court, bringing them forward in the House of Commons’. In arguing for a resolution against the practice in June 1858 Lord Hotham quoted an article in The Times:

Corruption is the rule in India—bribery, the recognized procedure of all its courts. How are these people to draw the distinction (sufficiently subtle at the best) between the fee to the barrister and the bribe to the Member, in those cases where one and the same person advocates in the House, as Member, the very same cause that he was retained to advise on as a barrister? A fee of 500 guineas is left with papers in a dingy set of chambers in the Temple; that is the first act; a consultation is the second; a speech in the House the third. Can you hope to make the Indian Prince believe that the speech of the Member has not really been bought by the fee to the barrister? Nay, can you make any one else believe it? Do you, reader, believe it? Does Mr. Bull believe it, or Mrs. Bull, or any of the family who h ave come to years of discretion? Can we wonder that our wealthy subjects in Asia are filled with a profound conviction that our boasted purity of Parliament is but a farce? Can we wonder that it should be publicly stated in India, as Mr. Mangles assured us it is, ‘That the services of Members of Parliament are obtainable for money? Can the House tolerate such imputations as these? Ought it to hesitate a moment in stringently enforcing the plain rule, that no legal Member shall advocate or promote in Parliament any cause or matter in respect of which he has been professionally consulted as a fee’d advocate.”

The result was the resolution of 22 June 1858: ‘That it is contrary to the usage and derogatory to the dignity of this House, that any of its Members should bring forward, promote, or advocate, in this House, any proceeding or measure in which he may have acted or been concerned, for or in consideration of any pecuniary fee or reward.’

There were, of course, many other scandals concerning MPs advancing causes in which they had personal interests in the course of the nineteenth and early twentieth century as directors of companies or as shareholders, and by the 1930s very widespread concern about its extent. But the concern about paid advocacy continued to be seen in terms principally of the activities of lawyers on behalf of their clients, rather than more broadly. A string of cases in the 1940s revealed that paid advocacy was just as serious a problem as anything else. There was the case of the minister Bob Boothby, whose assistance to a Czech refugee in 1939 in securing the transfer of his family’s assets to Britain on the German invasion was judged, by a committee, to have been influenced by (according to the select committee which investigated it) the payment of a ‘considerable sum of money… on the understanding that Mr Boothby would render services in return. Such services included political speeches and pressure on Ministers of the Crown and Treasury officials’. There were the slightly different cases of two Labour MPs in the mid-1940s, W.A. Robinson and William Brown who were both paid officials of their unions: the unions exerted pressure on them to conduct themselves in line with union policy, and both complained to the House. The House concluded that ‘it is inconsistent witht eh dignity of the House, with the duty of a Member to his constituents, for any Member of this House to enter into any contractual agreement with an outside body, controlling or limiting the Member’s complete independence and freedom of action… The duty of a Member is to his constituents and to the country as a whole, rather than to any particular section’. But no more specific action was taken, until the growth of the public relations and lobbying industry brought out more egregious cases, among them of the Labour MP Gordon Bagier, hired by a lobbying firm in 1969 to support its clients (which included the military regime of the Colonels in Greece, which eventually led to the establishment of a register of Members’ Interests. The route from there through the ‘Sleaze’ of the 1990s, the report of the Committee on Standards on Public Life and the establishment of the commissioner for standards, has been well described by many others, including the House of Commons Library research briefing accessible here.