Correspondence between Chairman and Attorney
General
Letter from the Attorney General to the Chairman
Thank you for your letter of 25 October attaching
a copy of a letter from, and motion tabled by, Lord Morris of
Aberavon. Lord Morris is of the view that the Committee and the
House of Lords would benefit from the advice of the Law Officers
on whether the Parliament Acts could be used to enact legislation
which provided for a change of the composition of the House if
the House refused to give its approval to such proposals.
In my view it is somewhat premature for the Committee
to seek advice of this kind. The pre legislative scrutiny
being conducted by the Committee is far from finished. Accordingly
no Bill containing the Government's final proposals has been introduced
into Parliament. And, not least, there has been no rejection of
these proposals by the House which would require consideration
of the Parliament Acts.
In any event, I am not sure that it would be appropriate
for the Law Officers to advise the House on matters such as this.
As Lord Morris will no doubt remember well the Attorney General
wears a number of hats. My role as legal adviser to Parliament
is residual and limited to the giving of advice in relation to
the constitution of and the conduct of proceedings in the House,
the conduct and discipline of members and the effect of proposed
legislation. These restrictions are well established and reflect
the risk of a conflict of interest between my role as adviser
to Parliament and my primary duty to advise the Crown (that is,
Her Majesty's Government) on legal questions. Accordingly, I do
not believe that it is appropriate for the Law Officers to advise
Parliament on issues relating to the Government's legislative
programme.
Moreover the House is able to draw upon a large
body of expert legal opinion. There is no shortage of previous
Law Officers & Lord Chancellors, retired Law Lords and notable
constitutional lawyers who will be able to assist the House in
the consideration of this issue. Any advice I would give would
just be that- advice- with no special standing in the House beyond
any view expressed by any other learned member.
A copy of this letter goes to Lord Morris, the Advocate
General for Scotland and Mark Harper.
7 November 2011
Letter from the Chairman to the Attorney General
I am writing in my capacity of Chairman of the Joint
Committee on the draft House of Lords Reform Bill.
The Committee has received a letter from Lord Morris
of Aberavon, a copy of which I attach. The letter should be read
in conjunction with the motion which Lord Morris has tabled. lt
appears in the Lords Business paper, without a day, and is in
the following terms:
"Lord Morris of Aberavaon to move to resolve
that this House instructs the Clerk of the Parliaments to seek
the advice of the Attorney General on whether a Bill which provided
for a change in the composition of this House, and in respect
of which the provisions of section 2 of the Parliament Act I91
I had been complied with, would, having received Royal Assent,
be an Act of Parliament and be capable of having legal effect.
'
The Committee have agreed that I should ask you for
any observations which you may care to make on the points made
in Lord Morris's letter.
25 October 2011
Letter from Lord Morris of Aberavon to the
Chairman
In my contribution to the debate on "Reform
of the House of Lords" I quoted a number of Law Lords who
had raised doubt as to how far one could define the subjects that
were not amenable to change under the Parliament Acts.
1 concluded that "The weight of opinion, despite
reservations and concerns, may well lead towards recognising a
considerable supremacy for Parliament....The issue may be whether
there are exceptional circumstances which are so fundamental that
even a sovereign Parliament cannot act. Lord Hope had said "The
courts have a part to play in defining the limits of Parliament's
legislative sovereignty"."
This is the very issue that causes me concern- the
possibility of the matter being litigated in the courts, probably
to the highest level.
Inevitably this would lead to the perception of the
politicising of the courts. As in the American Supreme Court the
history, track records and expression of earlier views would be
closely scrutinised whenever new appointments are made to the
Bench. lt may never happen, but it is a danger that I would be
most anxious to avoid.
Hence I am concerned to see the Law Officers' opinion,
should you seek it, as I hope your committee will. My motion on
the Order Paper for the House to debate the seeking of such an
opinion still stands.
I have been asked who might be the respondent to
any action. From memory in the absence of any other respondent,
I believe the Attorney General takes on this role. This is what
happened in the "Fox Hunting" case Jackson and others
(appellants) v Her Maiesty's Attorney General (Respondent).
17 October 2011
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