Representing Parliament - Ben Yong

Representing Parliament: the role of parliamentary lawyers in 
identifying, interpreting and defending the interests of the legislature  

Ben Yong (Durham Law School)

Why did counsel for the Houses of Parliament choose not to appear in Cherry/ Miller 2 case? This was a case which touched upon parliamentary privilege, a privilege jealously guarded by Parliament. The Divisional Court said it had notified the Houses, but ‘entirely understandably’ counsel chose not to make submissions. Why was this?

In this paper we explore the role of parliamentary lawyers—lawyers specifically employed to advise Parliament—in defending the interests of the legislature as an institution. They face a set of challenges. First, parliamentary lawyers must identify the client: this can be difficult because the legislature is a ‘they’, and not an ‘it’. Second, they must identify, interpret and defend institutional interests in an intensely political environment where it is particularly difficult to divorce the institutional concerns of the legislature from partisan concerns. Finally, parliamentary lawyers must do all of this whilst remaining impartial.

Most of the time, these questions are resolved institutionally. The institution has clarified when Parliament speaks, and when its representatives can act. Even so, that clarification is incomplete: much is left to competing interpretations among parliamentary lawyers, and there are ongoing, internal debates around institutional representation and institutional interests in different contexts. It is in this context we should understand the responses of parliamentary lawyers to Cherry/Miller 2.

In this paper we examine these issues by drawing on published parliamentary reports, and interviews conducted with parliamentary lawyers and their clients (clerks and parliamentarians) from the four legislatures of the UK.