Lord Chancellor Explained

Border:parliamentary
Minister:not_prime
Office:Lord High Chancellor of Great Britain
Incumbent:Jack Straw
Tookoffice:28 June 2007
Appointed By:Elizabeth II
Governor:Queen
First Minister:The Lord Cowper
Date:May 1707
of Kingdom of Great Britain

The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State and is appointed by the Sovereign on the advice of the Prime Minister. Prior to the Union there was a separate Chancellor of England and Lord Chancellor of Scotland.

One of the Lord Chancellor's responsibilities is to act as the custodian of the Great Seal. He is a member of the Cabinet and, by law, is responsible for the efficient functioning and independence of the courts. Formerly he was also the presiding officer of the House of Lords, and the head of the judiciary in England and Wales, but the Constitutional Reform Act 2005 transferred these roles to the Lord Speaker and the Lord Chief Justice respectively. The present Lord Chancellor, The Rt. Hon. Jack Straw, is also Secretary of State for Justice, and the first Lord Chancellor since the seventeenth century not to be a peer. His predecessor, Lord Falconer of Thoroton served as Secretary of State for Constitutional Affairs before that post was superseded by the post of Secretary of State for Justice in 2007.

A Lord Keeper of the Great Seal may be appointed instead of a Lord Chancellor. The two offices entail exactly the same duties; the only distinction is in the mode of appointment. Furthermore, the office of Lord Chancellor may be exercised by a committee of individuals known as "Lords Commissioners of the Great Seal". Since the 19th century, however, Lord Chancellors have been exclusively appointed, the other offices having fallen into disuse.

History

The office of Lord Chancellor may trace its origins to the Carolingian monarchy, in which a Chancellor acted as the keeper of the royal seal. In England, the office dates at least as far back as the Norman Conquest (1066), and possibly earlier. Some give the first Chancellor of England as Angmendus, in 605. Other sources suggest that the first to appoint a Chancellor was Saint Edward the Confessor, who is said to have adopted the practice of sealing documents instead of personally signing them. A clerk of Edward's, Regenbald, was named "chancellor" in some documents from Edward's reign.[1] In any event, the office has been continuously occupied since the Norman Conquest.

Formerly, the Lord Chancellor was almost always an ecclesiastic, as during the Middle Ages the clergy were amongst the few literate men of the realm. The Lord Chancellor performed multiple functions - he was the Keeper of the Great Seal, the chief royal chaplain, and advisor in both spiritual and temporal matters. Thus, the position emerged as one of the most important ones in government. He was only outranked in government by the Justiciar (whose post is now obsolete).

As one of the King's ministers, the Lord Chancellor attended the Curia Regis, or Royal Court. If a bishop, the Lord Chancellor received a writ of summons; if an ecclesiastic of a lower degree, or if a layman, he attended without any summons. The Curia Regis would later evolve into Parliament, the Lord Chancellor becoming the prolocutor of its upper house, the House of Lords. As was confirmed by a statute passed during the reign of Henry VIII, a Lord Chancellor could preside over the House of Lords even if not a Lord himself.

The Lord Chancellor's judicial duties also evolved through his role in the Curia Regis. Petitions for justice were normally addressed to the King and the Curia, but in 1280, Edward I instructed his justices to examine and deal with petitions themselves as the Court of King's Bench. Important petitions were to be sent to the Lord Chancellor for his decision; the more significant of these were also to be brought to the King's attention. By the reign of Edward III, this chancellery function developed into a separate tribunal for the Lord Chancellor. In this body, which became known as the High Court of Chancery, the Lord Chancellor would determine cases according to fairness (or "equity") instead of according to the strict principles of common law. The Lord Chancellor also became known as the "Keeper of the King's Conscience." Ecclesiastics continued to dominate the Chancellorship until the 16th century. In 1529, after Thomas Cardinal Wolsey, who was Lord Chancellor and Archbishop of York, was dismissed for failing to procure the annulment of Henry VIII's first marriage, ecclesiastics fell out of the royal favour, and laymen came to be appointed to the office. Ecclesiastics made a brief return during the reign of Mary I, but thereafter, almost all Lord Chancellors have been laymen.

The Office

Formerly, when the office was held by ecclesiastics, a "Keeper of the Great Seal" acted in the Lord Chancellor's absence. Keepers were also appointed when the office of Lord Chancellor fell vacant, and discharged the duties of the office until an appropriate replacement could be found. When Elizabeth I became Queen, Parliament passed an Act providing that a Lord Keeper of the Great Seal would be entitled to "like place, pre-eminence, jurisdiction, execution of laws, and all other customs, commodities, and advantages" as a Lord Chancellor. The only difference between the two offices is the mode of appointment - a Lord Chancellor is appointed by formal letters patent, but a Lord Keeper is appointed by the delivery of the Great Seal into his custody.

Formerly, it was customary to appoint commoners to the office of Lord Keeper, and peers to the office of Lord Chancellor. A Lord Keeper who acquired a peerage dignity would subsequently be appointed Lord Chancellor. The last Lord Keeper was Robert Henley, who was created a Baron in 1760 and was appointed Lord Chancellor in 1761. Since then, commoners as well as peers have been appointed to the post of Lord Chancellor; however, until the 21st-century changes to the office, a commoner would normally have been created a peer shortly after his appointment.

It is also possible to put the office of Lord Chancellor into commission (that is to say, to entrust the office to a group of individuals rather than a single person). The individuals who exercise the office become known as "Lords Commissioners of the Great Seal." Lords Commissioners of the Great Seal have not been appointed since 1836.

Formerly, there were separate Chancellors of England, Scotland and Ireland. When the Kingdom of England and the Kingdom of Scotland united to form the Kingdom of Great Britain under the Act of Union 1707 the offices of the Chancellor of England and the Lord Chancellor of Scotland were combined to form a single office of Lord Chancellor for the new state. Similar provision was not made when Great Britain and Ireland merged into the United Kingdom under the Act of Union 1800. Thus, the separate office of Lord Chancellor of Ireland continued to exist until the formation of the Irish Free State in 1922. The office of Lord Chancellor of Ireland was abolished, and its duties transferred to the Governor of Northern Ireland, and later the Secretary of State for Northern Ireland. Thus, the Lord Chancellor remains "Lord High Chancellor of Great Britain", and not "Lord High Chancellor of the United Kingdom." However, the Northern Ireland Court Service is the Lord Chancellor's department in Northern Ireland

Legislative functions

The Lord Chancellor was originally the presiding officer of the House of Lords by right of prescription. The Constitutional Reform Act 2005 devolved this function onto the Lord Speaker.

Whenever the Sovereign appoints Lords Commissioners to perform certain actions on his or her behalf (for example, to formally declare in Parliament that the Royal Assent has been granted), the Lord Chancellor serves as the principal or senior Lord Commissioner. The other Lords Commissioners, by convention, are members of the House of Lords who are Privy Counsellors. In this role the Lord Chancellor wears Parliamentary Robes - a full-length scarlet wool gown decorated with miniver fur. The Lord Chancellor wears a tricorne hat, but the other Lords Commissioners wear bicorne hats.

Executive functions

The Lord Chancellor is a member of the Privy Council and of the Cabinet. The office he heads was known as the Lord Chancellor's Office between 1885 and 1971 and the Lord Chancellor's Department between 1971 and 2003. In 2003 the Department was renamed the Department for Constitutional Affairs and The Lord Chancellor was appointed Secretary of State for Constitutional Affairs. In 2007 this post was renamed Secretary of State for Justice and the department became the Ministry of Justice.

The Department headed by the Lord Chancellor has many responsibilities, such as constitutional reform (including reforms of the office of Lord Chancellor itself) and the administration of the courts. Furthermore, the Lord Chancellor has a role in appointing many judges in the courts of England and Wales. Senior judges (Lords of Appeal in Ordinary, Lords Justices of Appeal and the Heads of the Divisions of the High Court) are officially appointed by the Sovereign on the advice of the Lord Chancellor, but since 2005 the Lord Chancellor has been advised by an independent Judicial Appointments Commission and can only choose whether to accept or reject its recommendations. Similarly the Lord Chancellor no longer determines which barristers are to be raised to the rank of Queen's Counsel but merely supervises the process of selection by an independent panel.

Custody of the Great Seal of the Realm is entrusted to the Lord Chancellor. Documents to which the Great Seal is affixed include letters patent, writs and royal proclamations. The sealing is actually performed under the supervision of the Clerk of the Crown in Chancery (who holds the additional office of Permanent Secretary to the Lord Chancellor). The Lord Chancellor does not maintain custody of the Great Seal of Scotland (which is kept by the First Minister of Scotland) or of the Great Seal of Northern Ireland (which is kept by the Secretary of State for Northern Ireland).

Judicial functions

The judicial functions of the Lord Chancellor (as opposed to his role in the administration of the court system) were removed by the Constitutional Reform Act 2005.

Formerly, the Lord Chancellor performed several different judicial roles. He sat as a Judge in the Judicial Committee of the House of Lords (the highest domestic Court in the United Kingdom), and was a member of the Judicial Committee of the Privy Council (the senior Court of the British Empire and, latterly, parts of the Commonwealth). He was the President of the Supreme Court of England and Wales, and therefore supervised the Court of Appeal of England and Wales, the High Court of Justice of England and Wales and the Crown Court of England and Wales. He was also, ex officio, a judge in the Court of Appeal and the President of the Chancery Division. In modern times, these judicial functions were exercised very sparingly. The functions in relation to the House of Lords and the Judicial Committee of the Privy Council were usually delegated to the Senior Lord of Appeal in Ordinary. The task of presiding over the Chancery Division was delegated to the Vice-Chancellor, a senior judge (now known as the Chancellor of the High Court). Most Lords Chancellor by the end of the twentieth century gave judgments only in cases reaching the House of Lords. The last Lord Chancellor to preside as a Judge was Lord Irvine of Lairg, who did so as a member of the Judicial Committee of the House of Lords. However, concerns were already being expressed, including by the judiciary, at the propriety of a Cabinet Minister sitting as a professional Judge, and his successor, Lord Falconer, never performed such a role, even before his right to do so was abolished.

Formerly, when peers had the right to be tried for felonies or for high treason by other peers in the House of Lords (instead of commoners on juries), the Lord High Steward, instead of the Lord Chancellor, would preside. This also occurred in impeachment trials. (The office of Lord High Steward has generally remained vacant since 1421. Whenever a peer was to be tried in the House of Lords, a Lord High Steward would be appointed pro hac vice [for this occasion]). In many cases, the Lord Chancellor would merely be elevated to the office of Lord High Steward temporarily. Trials of peers in the House of Lords were abolished in 1948, and impeachment is obsolete, so this is unlikely to occur again.

At the beginning of the legal year, the Lord Chancellor officiates at a ceremony in Westminster Abbey in front of all the judges. The ceremony is followed by a reception known as the Lord Chancellor's breakfast which is held in Westminster Hall.

From 1867 to 1875, the Lord Chancellor was the highest court officer for Canada until the creation of the Supreme Court of Canada and the office of Chief Justice of the Supreme Court of Canada.

Ecclesiastical functions

The Lord Chancellor performs various functions relating to the established Church of England. He appoints clergymen in such of the ecclesiastical livings under the patronage of the Crown as are officially listed as being worth less than £20 per annum. Furthermore, he exercises the same prerogative in regard to the less valuable livings in the Duchy of Cornwall when there is no Duke of Cornwall, or when the Duke of Cornwall is a minor. (The heir-apparent to the Crown, if he is the Sovereign's eldest son, is automatically Duke of Cornwall.) Finally, the Lord Chancellor is in some cases the patron of an ecclesiastical living in his own right. Thus, in total, he appoints clergymen in over four hundred parishes and twelve cathedral canonries.

By law, the Lord Chancellor must be consulted before appointments may be made to certain ecclesiastical courts. Judges of Consistory Courts, the Arches Court of Canterbury, the Chancery Court of York and the Court of Ecclesiastical Causes Reserved are appointed only after consultation with the Lord Chancellor.

The Lord Chancellor is, ex officio, one of the thirty-three Church Commissioners, who manage the assets of the Church of England.

Formerly, Roman Catholics were thought to be ineligible for the office of Lord Chancellor, as the office entailed functions relating to the Church of England. Most legal restrictions on Roman Catholics were lifted by the Catholic Relief Act 1829, which, however, provides, "nothing herein contained shall … enable any Person, otherwise than as he is now by Law enabled, to hold or enjoy the Office of Lord High Chancellor, Lord Keeper or Lord Commissioner of the Great Seal". The words "as he is now by Law enabled", however, caused considerable doubt, as it was unclear if Roman Catholics were disqualified from holding the office in the first place. For the removal of all doubt, Parliament passed an Act in 1974, declaring that there was never any impediment to the appointment of a Roman Catholic. The Act nevertheless provided that, if a Roman Catholic were appointed to the office, then the Sovereign may temporarily transfer the Lord Chancellor's ecclesiastical functions to the Prime Minister or another minister.

Other functions

Under the Regency Act 1937, the Lord Chancellor is one of the five persons who participate in determining the capacity of the Sovereign to discharge his or her royal duties - the other individuals so empowered are the Sovereign's spouse, the Speaker of the House of Commons, the Lord Chief Justice of England and Wales and the Master of the Rolls. If any three or more of these individuals, based on evidence that, as required by statute, shall include evidence provided by physicians, determine that the Sovereign suffers from a mental or physical infirmity that prevents him or her from personally discharging the duties of Head of State, the royal functions may be transferred to a Regent.

The Lord Chancellor is also the Keeper of the Queen's Conscience. As Keeper of the Queen's Conscience, the Lord Chancellor was once also the chief judge of the Court of Chancery in London, dispensing equity to soften the harshness of the law.

The Lord Chancellor acts as the Visitor of many universities, colleges, schools, hospitals and other charitable organisations throughout the United Kingdom. When the rules of the organisation do not designate a Visitor, or when a vacancy in the office arises, the Sovereign serves as Visitor, but delegates the functions to the Lord Chancellor. Furthermore, some organisations explicitly provide that the Lord Chancellor is to act as Visitor; these bodies include St. George's Chapel, Windsor, the Royal Institution, Newcastle University and three colleges of the University of Oxford (namely St. Antony's College, Worcester College, and University College).

The power to appoint members of certain organisations is vested in the Lord Chancellor. These organisations include the governing bodies of Harrow School, Rugby School and Charterhouse School.

Precedence and privileges

The Lord High Chancellor outranks all other Great Officers of State, with the exception of the Lord High Steward, which office, as aforementioned, has generally been vacant since the 15th century. Under modern conventions, the office of Lord High Steward is only filled on the day of a new monarch's coronation; thus, at all other times, the Lord Chancellor remains the highest ranking Great Officer. The importance of the office is reflected by the Treason Act 1351, which makes it high treason to slay the Lord Chancellor. A Lord High Treasurer would be entitled to the same protection - but the office is now held in commission - as would a judge whilst actually in court, determining a case.

The Lord Chancellor's position in the modern order of precedence is an extremely high one; generally, he is outranked only by the Royal Family and high ecclesiastics. In England, the Lord Chancellor precedes all non-royal individuals except the Archbishop of Canterbury. In Scotland, he precedes all non-royal individuals except the Lord High Commissioner to the General Assembly of the Church of Scotland. Although Lord Chancellor "of Great Britain", he maintains a position in the order of precedence in Northern Ireland; there, he outranks all non-royal individuals with the exception of the Anglican and Roman Catholic Archbishops of Armagh, the Anglican and Roman Catholic Archbishops of Dublin and the Moderator of the Presbyterian Church in Ireland. Throughout the United Kingdom, the Lord Chancellor technically outranks the Prime Minister, although the latter generally possesses more power. The precedence of a Lord Keeper of the Great Seal is equivalent to that of a Lord Chancellor. The precedence of Lords Commissioners of the Great Seal is much lower (see United Kingdom order of precedence).

The Lord Chancellor is entitled to an annual emolument of £227,736 and to an annual pension of £106,868. The Lord Chancellor's salary is higher than that of any other public official, including even the Prime Minister, although sometimes the officeholder may voluntarily decide to receive a reduced salary.

Reform

In the early 21st Century the combined executive, legislative and judicial functions of the historical office of Lord Chancellor began to be viewed as untenable, as it infringed on the idea of the separation of powers as put forward by Montesquieu (where no one should reside in any more than one of the three branches of government; the Lord Chancellor stood in all three). It was also considered as possibly inconsistent with the European Convention on Human Rights. At the same time, proposals by the Blair Government simply to abolish the office met with opposition from those who felt that such an official is necessary to speak on the judiciary's behalf in the Cabinet, as well as from those who opposed the sudden abolition of such an ancient office. In 2003, Tony Blair chose his close friend and former flatmate Lord Falconer of Thoroton to be Lord Chancellor and Secretary of State for Constitutional Affairs. At the same time, he announced his intention to abolish the office of Lord Chancellor and to make many other constitutional reforms. After much surprise and confusion, it became clear that the ancient office of Lord Chancellor could not be abolished without an Act of Parliament. Lord Falconer of Thoroton duly appeared in the House of Lords to preside from the Woolsack on the next day. The Lord Chancellor's Department, however, was renamed the Department for Constitutional Affairs.

In January 2004, the Department of Constitutional Affairs published a concordat, outlining the division of authority between Lord Chancellor and Lord Chief Justice and which was intended as the basis of reform.[2] The Government introduced the Constitutional Reform Bill in the House of Lords in February 2004. The Bill sought to abolish the office of Lord Chancellor, and to transfer his functions to other officials: legislative functions to a Speaker of the House of Lords, executive functions to the Secretary of State for Constitutional Affairs and judicial functions to the Lord Chief Justice. The Bill also made other constitutional reforms, such as transferring the judicial duties of the House of Lords to a Supreme Court.

In March 2004, however, the Lords upset the Government's plans by sending the bill to a Select Committee. Although initially seen as a move to kill the bill, the Government and Opposition agreed to permit the Bill to proceed through the parliamentary process, subject to any amendments made by the Committee. On 13 July, 2004, the House amended the Constitutional Reform Bill such that the title of Lord Chancellor would be retained, although the Government's other proposed reforms were left intact. Then, in November 2004, the Government introduced an amendment in the Lords which wholly removed references to the Secretary of State for Constitutional Affairs, changing them to ones about the Lord Chancellor, with the positions of Secretary of State and Lord Chancellor envisaged as being held by the same person. The final Constitutional Reform Act received royal assent on March 24, 2005 and the major transfers of the historical functions of the Lord Chancellor to were transferred to others (such as the Lord Chief Justice and Lord Speaker) were complete by mid-2006. However the Lord Chancellor and Secretary of State for Constitutional Affairs retained his place as a member of the Cabinet and certain special statutory functions.

Unlike the responsibilities of other Secretaries of State, that can be transferred from one department to another by an order-in-council, several functions of the Lord Chancellor are linked to the office of Lord Chancellor as a matter of statute law, even after the adoption of the Constitutional Reform Act. Those "protected functions" of the Lord Chancellor can only be transferred to other ministers by Act of Parliament.[3]

In May 2007, the Department of Constitutional Affairs ceased to exist, and its functions were transferred to a newly created Ministry of Justice, that will also take charge of certain responsibilities that were transferred to it from the Home Office. Lord Falconer, the Lord Chancellor, while retaining that title and office, was appointed the first Secretary of State for Justice.

In the past, if a person who was not a peer was to be appointed to the office of Lord Chancellor, he would be raised to the peerage upon receiving the appointment. With enactment of the Constitutional Reform Act, 2005 and the subsequent separation of the roles of Lord Chancellor and Speaker of the House of Lords, it is no longer necessary for the Lord Chancellor to be a peer.[4] In June 2007, Jack Straw, an MP, was appointed as Secretary of State for Justice and Lord Chancellor, thus becoming the first Lord Chancellor who is a member of the House of Commons, rather than the House of Lords or its predecessor, the Curia Regis, since Sir Christopher Hatton in 1578.[5] [6]

Fictional depictions

The most celebrated fictional depiction of a Lord Chancellor occurs in Iolanthe, the comic opera by W. S. Gilbert and Arthur Sullivan. The Lord Chancellor is the central character in the work but is identified only by his title. The action concerns a group of fairies who become romantically involved with members of the House of Lords. The Lord Chancellor, who serves as guardian to wards of the Court of Chancery, is worried, because he has developed feelings for a ward of court. The character sings a patter song, "The Nightmare Song", about his mental anguish caused by unrequited love. In dialogue, the Lord Chancellor, in another reference to his romantic dilemma, complains "ah, my Lords, it is indeed painful to have to sit upon a Woolsack stuffed with such thorns as these!"

William H. Rehnquist, late Chief Justice of the United States, was inspired to add four golden stripes to the sleeves of his judicial robes after seeing the costume of the Lord Chancellor in a production of Iolanthe. The current Chief Justice, John G. Roberts Jr., has not continued the practice.

A fictional Lord Chancellor also appears in Charles Dickens' novel Bleak House (also identified only by title), presiding over the interminable chancery case of Jarndyce and Jarndyce.

See also

Bibliography

Notes and References

  1. Book: Frank Barlow (historian)

    . Barlow, Frank. Frank Barlow (historian). Edward the Confessor. University of California Press. Berkeley. 1970. 0-520-01671-8. 164.

  2. Web site: The Lord Chancellor's judiciary-related functions: Proposals. Since referred to as 'the agreement' and also 'the concordat'. 2008-03-05. January. 2004. Department of Constitutional Affairs.
  3. http://www.opsi.gov.uk/acts/acts2005/ukpga_20050004_en_1 Constitutional Reform Act 2005
  4. In his memoirs Lord Simon (Lord Chancellor 1940-1945) writes "It is not constitutionally necessary that the Lord Chancellor should be a Peer (Sir Thomas More was not, for one), but this is practically inevitable, for otherwise he would be limited to the formal business of presiding and "putting the Question" and be unable to take the smallest part in debate. The theory is that the Woolsack itself, and, I suppose, the space immediately in front of it, do not form part of the debating floor, and that is the reason why, when the Lord Chancellor takes part in any discussion - even when only moving the reading of a Bill - he steps nimbly to the left and thus speaks while standing on what is in the full sense Lords' territory." Viscount Simon Retrospect: The Memoirs of the Rt. Hon. Viscount Simon G.C.S.I., G.C.V.O. (London; Hutchinson, 1952), page 255.
  5. Web site: Sir Christopher Hatton. Love to Know Classic Encyclopedia (from the 1911 edition of the Encyclopaedia Brittanica).
  6. Web site: Constitutional continuity: Jack Straw speech at the London School of Economics. 3 March 2009. 5 March 2009.