Attorney-General’s Legal Advice

Earl Howe Excerpts

Wednesday 25th September 2019 Lords Chamber

[Earl Howe (Con)]

My Lords, I shall now repeat in the form of a Statement the Answer to an Urgent Question given in another place earlier today by my right honourable and learned friend the Attorney-General. He was asked to make a Statement about his legal opinion on the advice given to Her Majesty the Queen to prorogue Parliament. The Answer was as follows:

“As the honourable and learned Lady knows, the Supreme Court gave judgment on this issue yesterday, and that judgment sets out the definitive and final legal position on the advice given to Her Majesty on the prorogation of Parliament. The Government’s legal view during the case was set out and argued fully before the Supreme Court; the hearing was streamed live and the Government’s written case was, and is, available on the Supreme Court website. I took a close interest in the case and I oversaw the Government’s team of counsel. I have to say that if every time I lost a case I was called upon to resign, I would probably never have had a practice.

The Government accept the judgment and accept that they lost the case. At all times, the Government acted in good faith and in the belief that their approach was both lawful and constitutional. These are complex matters on which senior and distinguished lawyers will disagree. The Divisional Court, led by the Lord Chief Justice, as well as Lord Doherty, from the Outer House of Scotland, agreed with the Government’s position, but we were disappointed that, in the end, the Supreme Court took a different view. Of course we respect its judgment. Given the Supreme Court’s judgment, in legal terms the matter is settled. As the honourable and learned Lady will know, I am bound by the long-standing convention that the views of the Law Officers are not disclosed outside the Government without their consent. However, I will consider over the coming days whether the public interest might require a greater disclosure of the advice given to the Government on the subject. I am unable to give an undertaking or a promise to the honourable and learned Lady at this point, but the matter is under consideration”.

My Lords, that concludes the Statement.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating that Statement and for giving his noble and learned friend a well-deserved rest after his supreme efforts down the road. Will he join me in distancing this House, at least, from some of the intemperate, ill-advised remarks made by his colleagues in the other place—for example, that Parliament has no moral right to sit; that our judiciary should now become subject to political appointment; and that the highest court in these islands has somehow perpetrated a constitutional coup?

[Earl Howe]

My Lords, in the circumstances in which we find ourselves—which the Supreme Court itself characterised as a one-off—it is likely that phrases are used in the heat of the moment that are judged inappropriate in the cool light of day. I do not believe that the noble Baroness quoted my right honourable and learned friend quite correctly when she referred to a statement to the effect that Parliament has no moral right to sit. I think what he said was:

“This Parliament … has no moral right to sit”.


That was in the context of a debate on the other place’s inability to reach a conclusion on the outcome of Brexit, not about this particular matter.

I cannot comment on any suggestion that there should be a political process to appoint judges; that is well beyond my brief and I do not believe that it is under consideration at all. Even if it were, it would require lengthy and considered debate and judgment involving political parties of all complexions. It is not under serious consideration at the moment.

In these circumstances, we need to reflect on the judgment that the Supreme Court has reached. Instant comments on it are possible, of course. However, it has major constitutional and legal implications, as the noble Baroness will no doubt accept. It behoves us all to look at what was said and at how that impacts on our legal position as parliamentarians, but also for the Executive to reflect on how they should behave in the future regarding any future Prorogation.

[Lord Campbell of Pittenweem (LD)]

The noble Earl will be aware that, in the course of delivering the judgment of the court, the noble and learned Baroness, the President of the Supreme Court, observed that the Government had put forward no reason for seeking Prorogation—in contrast, perhaps, to Sir John Major, who submitted evidence to the Supreme Court. Why did the Prime Minister not do the same? Why did he not provide a sworn affidavit, for example? Was he concerned that he might be guilty of perjury if he did so?

[Earl Howe]

My Lords, as my right honourable and learned friend the Attorney-General told the other place, this matter is covered by legal privilege. The convention that the advice of the law officers is not disclosed outside Government without their consent is one that it was felt should be observed closely. I am afraid I cannot comment further on that matter.

[Lord Deben (Con)]

My noble friend knows that I am not a lawyer. What I have to say is therefore not a legal thing. It strikes me that most people will feel that, when the Supreme Court has voted by 11 to none, it would be proper for the Attorney-General not to have included the sentence, “There can be disagreement among people”. Would it not have been better for us all if there had been a very simple statement to the effect that the courts have decided, the Government will accept this and whatever may have happened otherwise no longer obtains? I would like to feel that there was the odd bit of remorse in what he said.

[Earl Howe]

My right honourable and learned friend has said, in terms, that he accepts the court’s judgment—the Government got it wrong. He has been clear that it is now right that we ensure that any future decisions of this nature conform to the judgment of the Supreme Court. If my noble friend is requiring my right honourable and learned friend to make an apology for the legal view that he took during the course of the case, I do not think that is appropriate. The Supreme Court has disagreed with the Government’s legal view, but that is not the same as saying that the Government’s position was not tenable in the first place.

[Lord Browne of Ladyton (Lab)]

My Lords, with respect, the noble Earl, Lord Howe, did not answer the question that the noble Lord, Lord Campbell, asked. The fact is that nobody believes that the Government sought the Prorogation of Parliament to prepare a Queen’s Speech—not even the government Ministers or other people who are peddling this. The evidence that was not the reason was found in the papers presented to the Scottish court, which revealed the real thinking of the Government. The question the noble Lord, Lord Campbell, asked was: why, in the context of the litigation, was no ministerial statement, far less a prime ministerial statement, put before the court to explain in their own words—not through their lawyers— why the Government sought a Prorogation? Why did the Government not have the courage to put that into a statement? Was it fear that government Ministers would perjure themselves if they did this and swore an oath in that statement?

[Earl Howe]

My Lords, I have already given the reason why that did not happen: any advice that was given to the Prime Minister would have been covered by legal privilege, and it was judged inappropriate to disclose anything of that nature to the court. The Government have been clear about why we need a Queen’s Speech—we want to deliver what the public want and we urgently need to consider how to advance that work in advance of a Queen’s Speech. It was against this background that the Prorogation of Parliament was sought.

[Lord McNally (LD)]

My Lords, I was on these Benches when we supported the legislation that created the Supreme Court, and I ask this House particularly to ponder what would have happened if yesterday’s decision had been made by the House of Lords rather than by the Supreme Court. Was it not the wisdom of that legislation that we separated our constitution in a way that the public would understand, that there is an Executive, a legislature and the rule of law embodied in a Supreme Court? One danger of the way the Government have responded to this is that it does not seem to appreciate, understand, or support the idea that those three pillars of the constitution have to be mutually supportive to make our democracy work.

I am pleased that the noble Lord, Lord Callanan, is back, but if the Government are cooking up some merry wheeze to get around a law of Parliament in the next two weeks, my God, are they going to face an explosion about their disregard for our constitution, our Parliament and our rule of law.

[Earl Howe]

My Lords, as my noble friend Lord Callanan made absolutely clear, the Government will abide by the law at all times—we cannot do anything other than that. I agree with the noble Lord, Lord McNally, about the Supreme Court. It has exercised its duties and functions in an exemplary way, it has reached its conclusions unanimously, and we should be grateful that we have an independent judiciary able to do these very difficult things.