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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