Attorney-General’s Legal Advice

Lord Campbell of Pittenweem Excerpts

Wednesday 25th September 2019 Lords Chamber

[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.