Draft House of Lords Reform Bill - Draft House of Lords Reform Bill Joint Committee Contents



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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