Select Committee on Procedure of the House Second Report


APPENDIX: MEMORANDUM BY THE LORD CHANCELLOR


1.  The purpose of this paper is to invite the Committee to consider the role of the Lord Chancellor in Royal Commissions for Prorogation. In so doing, the Committee is invited to resolve an inconsistency between the terms of Standing Order 77 and the Companion to the Standing Orders.

2.  Standing Order 77 states that:

"If Her Majesty is not personally present to prorogue Parliament at the close of a session, such prorogation is not to be by Writ, but by Commission directed unto some of the Lords of the Upper House; and they, being in their robes and seated on a form placed between the Throne and Woolsack, are to command the Usher of the Black Rod to let the Commons know the Lords Commissioners desire their immediate attendance in the House of Peers, to hear the Commission read; and the Commons being come up to the Bar of this House and standing uncovered, the Commission is to be read by the Clerk, after which Parliament is to be prorogued in such manner, and to such time, as is commanded by the said Commission."

For very many years, such Commissions have been presided over by the Lord Chancellor. However, the requirement in Standing Order 77 that the Commission should be directed to "Lords of the Upper House" appears to militate against the current Lord Chancellor from participating as a Royal Commissioner by reason of his seat in the House of Commons.

3.  A number of difficulties arise with respect to Standing Order 77:

  • The choice of Commissioners is for Her Majesty; it is not appropriate for the House to seek to limit Her choice by Standing Order.
  • The Standing Order is inconsistent with the Companion to the Standing Orders, which at pages 224-6 sets out duties which the Lord Chancellor is required to exercise at the prorogation of Parliament in accordance with long-standing custom and practice.
  • The Standing Order refers only to Royal Commissions for Prorogation. This creates inconsistency, in that there is no bar to the Lord Chancellor presiding over Royal Commissions on other occasions, including at the opening of a new Parliament or upon the appointment of a new Speaker of the House of Commons. The role of the Lord Chancellor in such Royal Commissions is described in full in the Companion, pages 215 ff. There have been two examples in recent times of Lord Chancellors who were not yet members of the House of Lords presiding over Royal Commissions at the start of a new Parliament—Frederick Elwyn-Jones in 1974, and Sir Michael Havers in 1987.

4.  During the passage of the Constitutional Reform Bill it was agreed that the ancient Office of Lord Chancellor should be retained and in particular that the functions which he carries out by virtue of holding the Great Seal should remain part of his functions. The Lord Chancellor remains the highest ranked layman in the Order of Precedence. In the light of the continued high nature of the Lord Chancellor's Office I believe it is right and proper for the traditional functions of the Lord Chancellor to be preserved, including the responsibility of presiding over Royal Commissions at prorogation. It would be invidious were the role of the Lord Chancellor to vary according to whether the Lord Chancellor happened to be a member of the House of Lords or the House of Commons.

5.  I therefore invite the Committee to consider an appropriate amendment to Standing Order 77. It would be possible to amend the Standing Order thus:

"such prorogation is not to be by Writ, but by Commission directed unto some of the Lords of the Upper House Her Majesty's Privy Council".

This would reflect the tradition that only Privy Counsellors have been named of Royal Commissions for many years. Also, by retaining the word "Lords", it would allow certain other forms of words used on these occasions to remain undisturbed, e.g. the reference to Lords Commissioners in the Standing Order, and the Lord Chancellor's words once the Commons have arrived ("has also assigned to us and other Lords directed" [Companion, page 225]).

6.  I am able to give the Committee an assurance that the government cannot imagine anyone not a member of the House of Lords being named in Royal Commissions, other than the Lord Chancellor.

JACK STRAW C

May 2008



 
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