THE LAW OFFICERS AND THE HOUSE OF LORDS (Hansard, 19 November 1957)

§ VISCOUNT STANSGATE
My Lords, I beg to ask the Question which stands in my name on the Order Paper.

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, Writs commanding the attendance of the Attorney General and the Solicitor General as Assistants to the House of Lords are issued under the Great Seal by the Lord Chancellor on behalf of the Sovereign. 378 Historically speaking, they were originally summoned along with the other so-called Temporal Assistants, including the Judges of the Realm, Barons of the Exchequer of the Coif and the civilian Masters in Chancery, who were included in the ancient Concilium Regis. The texts of their Writs are similar to those issued at the present day to Her Majesty's Judges who are not summoned as Members of the House but who are commanded to attend and give their advice. I should be glad to show copies to the noble Viscount if he wishes.
As to their rights of sitting, speaking and voting, if the noble Viscount would look at Chief Justice Coke's Fourth Institute, Chapter 1, he will see there laid down that the Temporal Assistants who were summoned to the Upper House of Parliament had no "voices." Standing Order 19 of the House of Lords now provides that: The Judges, when summoned to attend the House, are not to speak or deliver any opinion until it be required, and they be admitted so to do by the major part of the House in case of difference. Although the Law Officers are not mentioned in the Standing Order, I have no doubt that they would, if they attended, be in a similar position to the Judges. No record exists showing the exact occasion when one of the Law Officers last obeyed such a Writ; but it is almost certain that the Writ has not been obeyed since 1742, and very probably the Law Officers had ceased to attend before 1700. No records have been discovered, either in the Parliament Office, the Crown Office or in the Attorney General's Office enabling me to give the noble Viscount a more precise answer.

§ VISCOUNT STANSGATE
My Lords, in thanking the Lord Chancellor most sincerely for an informative Lind thrilling Answer, may I ask this simple supplementary? Does the fact that these Law Officers receive this Writ of Attendance, which in substance is exactly the same as the Writ of Summons that we receive, disqualify them from sitting in the House of Commons?

§ THE LORD CHANCELLOR
It does not. But I think that the history of this matter is a most interesting commentary on the relations between the Houses, and if noble Lords will bear with me I will explain how the position arose. I hope 379 that I am not trespassing on your Lordships' time.
From the middle of the fifteenth century until the seventeenth century the King's Attorney—or "Attorney General"—sat on the Woolsack as an Assistant to the House of Lords, where he performed the functions of giving advice when asked and of taking Bills to the Commons. Under Henry VIII he sometimes also assisted in drafting Bills. As late as 1844 it was still theoretically possible for the Judges, as Assistants, to be asked to take Messages to the Commons. The noble Viscount will find that in the first edition of Erskine May.
By the beginning of the seventeenth century the offices of Attorney General and Solicitor General (who was first summoned to the House of Lords in 1809) were very much what they are to-day. Coke refers to the "King's Learned Councell" among the Temporal Assistants of the House of Lords and distinguishes between the Writs (I would emphasise this because I think it deals with the specific point the noble Viscount was making) which call them to attend to give their advice and the Writs summoning the Barons to Parliament. As I said, it seems that, although they "had no voice," the Law Officers and Judges were expected to attend the House. The change which took place during the century was the result of the constitutional change in the relationship between the Houses. A distinction was made between the Attorney General and the Solicitor General—a distinction for which, if I may say so, as I have held both offices, there seems to be no good reason, except that the former was the more important figure. But it is clear that although Solicitors General sat, and even acted as Speaker in another place in the reign of Queen Elizabeth I, the Commons objected to the Attorney General doing the same on account of his close association with your Lordships' House. In 1614 Francis Bacon was allowed to sit, but it was resolved that in future no Attorney General should do so. The prohibition was effective in 1640, but in 1673 Francis North was permitted to sit.
From this time onwards it became normal for the Attorney General to be a Member of the Commons. Although 380 before 1700 at least two (Sir William Jones and Sir John Trevor) were not. It is interesting to note that during this period the Judges did not attend your Lordships' House as often as your Lordships' predecessors would have wished, and it is probable that the Law Officers ceased attending altogether. Macqueen's Practice of the House of Lords, published in 1842, states at page 46 that "for upwards of a century and a half" the duties of Assistants had been exclusively performed by the Judges who, not being permitted to sit in the House of Commons, had no divided loyalty. Macqueen also records that in 1685 it was a Standing Order that neither the Attorney General nor any other assistant should be heard at the Bar of this House as counsel for any private individual. From that date it is probable that the Attorney General preferred to appear as counsel and ceased to act as Assistant—indeed, in 1692 your Lordships petitioned the Crown for the services of Attorney General Somers as Assistant, but the outcome of that Petition is unknown.
The next significant piece of evidence is the Standing Order of 1742 which amended the prohibition of 1685 by limiting it to Assistants who had taken their places on the Woolsack. This Order was still in force in 1844, but is no longer preserved in the Standing Orders of the House of Lords. Order No. VII of the 1936 Standing Orders reads as follows: The learned Counsel are likewise to attend on the Woolsacks, but are never covered. The marginal note to the Order is "King's Counsel". The Parliament Office consider that this Order did not refer to the Law Officers, but they cannot be certain. The 1st Edition of Erskine May, in 1842. deals with all the Temporal Assistants of the House and sets out a Standing Order which is preserved almost exactly in Order VI of 1936, though applied there only to Judges and Privy Councillors.
My Lords, it is interesting that at the present day the Attorney General advises the Committee for Privileges of your Lordships' House. It is arguable whether he then appears as Assistant or as counsel for the Crown. I should think the view which is more widely held is that he appears as counsel for the Crown. But he also advises the Personal Bills Committee of your Lordships' House, and 381 there the old position of Assistant shades off very mildly into the position of counsel for the Crown.
Let me take another example. Suppose that, to the good fortune of your Lordships, I was absent and the Woolsack was occupied by my noble friend Lord Buckinghamshire (I take him as an example because he is a descendant of almost the most famous lay client in legal constitutional struggles, John Hampden, in the ship money case), and suppose that during the course of a debate your Lordships wanted to know what was the view of the law which underlay the position taken by Her Majesty's Government. It would still be open to my noble friend Lord Buckinghamshire to ask the Attorney General to come to the Bar of the House to carry on the view that was taken in about 1700 and to advise your Lordships upon the law. The essential difference is that it has always been an advisory position and not in any way as a Member of your Lordships' House. I apologise for detaining your Lordships for so long, but this is a point of interest to myself, and I hope that my remarks have been not unhelpful to the noble Viscount.

§ VISCOUNT STANSGATE
My Lords, in common, I am sure, with all Members of the House, I am deeply grateful to the noble and learned Viscount the Lord Chancellor. But in that wealth of historical material he has overlooked the question I asked him, which was: does the fact that the present Attorney General and Solicitor General both receive Writs cause them to be ineligible for a seat in the House of Commons?

§ THE LORD CHANCELLOR
My Lords, I am sorry that in that wealth of historical detail the noble Viscount did not hear my preliminary answer to his question. It was admirably short. It was, No.

§ VISCOUNT STANSGATE
Will the Lord Chancellor explain why it is that these two Officers are privileged? Any other Member of the House of Commons who receives a Writ to come here thereby, whether he accepts the Writ or not, vacates his seat. Why are the two Law Officers excluded from that?

§ THE LORD CHANCELLOR
I have put the point, and I think the noble Viscount will find that it occurs in my original Answer and in the enlargement which I gave him. It is because it is a Writ summoning them to advise the House, and not to be Members of the House.

§ VISCOUNT STANSGATE
I am sorry, but the Lord Chancellor cannot, I think, have read the two Writs. I will read them to him. The first Writ is the Writ of Attendance which the Attorney General receives, which says, "You must attend in your place personally to treat and give your advice." The Writ which we receive is, "To treat and give your counsel." In substance, there is no difference whatever between the two, and I should like to know why this disqualification falls on all Members of the House of Commons except these two Law Officers.

§ THE LORD CHANCELLOR
My Lords, the noble Viscount has made the distinction by his own words. The first is a Writ summoning them to attend and advise; the second is a Writ summoning them to attend and counsel. To everyone who knows the noble Viscount well, especially some who know him as well as I do, it means that when the noble Viscount is summoned to counsel the House he has a voice—and a very powerful voice. The Law Officers have no voice unless they are requested to advise. It would be a terrible detriment to your Lordships' House if the noble Viscount were in the position that he was able to address the House only if your Lordships commanded.