Lord Chancellor
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The Lord High Chancellor of Great Britain, or Lord Chancellor and in former times the Chancellor of England and the Lord Chancellor of Scotland, is one of the most senior and important functionaries in the government of the United Kingdom, and its predecessor states. He is a Great Officer of State, and is appointed by the Sovereign on the advice of the Prime Minister and is, by convention, always a peer, although there is no legal impediment to the appointment of a commoner. The Lord Chancellor's responsibilities are wide-ranging: they include presiding over the House of Lords; participating in the Cabinet; acting as the custodian of the Great Seal; and heading the judiciary. Concerns over these wide-ranging powers have led to Tony Blair's administration proposing the abolition of the office. The Constitutional Reform Act 2005 will transfer many of the powers to others. Since 2003, Lord Falconer of Thoroton has served as Lord Chancellor and also Secretary of State for Constitutional Affairs.
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 aforementioned 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. 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; even more significant ones were to be brought to the King's attention. By the reign of Edward III, however, a separate tribunal for the Lord Chancellor had developed. 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 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, a commoner would normally be 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 Lord Chancellor was appointed 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 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".
Legislative functions
The Lord Chancellor is the Speaker (presiding officer) of the House of Lords. There is no statute explicitly granting him such a power; rather, he is Speaker by right of prescription. Even a Lord Chancellor who is a commoner may preside over the House of Lords, though in practice the Lord Chancellor is always a peer nowadays. There are, however, certain instances when the Lord Chancellor does not preside: for instance, the Chairman of Committees presides over the Committee of the Whole House. Furthermore, Deputy Speakers appointed by the Sovereign may take the place of an absent Lord Chancellor.
A further historical instance may be mentioned: 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. (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.) This distinction is obsolete, as trials of peers in the House of Lords were abolished in 1948.
The Lord Chancellor, when presiding over debates, sits on the Woolsack, wearing a full ceremonial uniform or court dress. The robes are black, with gold lace embroidery. Like other judges, the Lord Chancellor also wears a ceremonial wig. His powers as Speaker are not as broad as those of his counterpart in the House of Commons. Unlike the Speaker of the House of Commons, the Lord Chancellor can neither determine who is to speak when two individuals rise at the same time, nor rule on points of order, nor discipline members who violate the rules of the House—all these functions are performed by the House of Lords as a whole. Furthermore, whilst speeches in the House of Commons are addressed to "Mr Speaker", those in the House of Lords are addressed to "My Lords". In practice, the only task of the Lord Chancellor in the Lords Chamber is to formally put the question before a vote, to announce the result of any vote, and to act (where appropriate) as the House's mouthpiece. Furthermore, the Lord Chancellor may end the adjournment of the House (or "recall" the House) during a public emergency.
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. Instead of wearing the court dress described above, he 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.
Unlike the Speaker of the House of Commons, the Lord Chancellor is not expected to remain non-partisan whilst in office. Rather, the Lord Chancellor continues to serve as an active spokesperson for the government in the House of Lords. The Lord Chancellor may participate in debates; he either keeps his full court dress on and speaks from beside the Woolsack, or relinquishes his place to a Deputy Speaker, dons normal clothing and speaks from the Government Front Bench. Whilst the Speaker of the House of Commons cannot cast a vote (except when the other members are equally divided), the Lord Chancellor votes together with the other members.
During debates in the House of Lords, the Lord Chancellor and former Lord Chancellors are referred to by appellations in the form, "the noble and learned Lord, Lord X". Most other Lords are merely "the noble Lord, Lord X".
Executive functions
The Lord Chancellor is a member of the Privy Council and of the Cabinet. The office he heads was formerly known as the Lord Chancellor's Department. When Lord Falconer of Thoroton was appointed Lord Chancellor in 2003, however, the Department was renamed, becoming the Department for Constitutional Affairs. The Lord Chancellor gained the additional position of Secretary of State for Constitutional Affairs. Like all other Ministers, the Lord Chancellor must face Question Time, during which he answers the questions of members of his House.
The Department headed by the Lord Chancellor has many responsibilities, such as the constitutional reforms (including reforms of the office of Lord Chancellor itself) and the administration of the courts. Furthermore, the Lord Chancellor nominates many judges in the courts of England and Wales, who are then appointed by the Sovereign. The Prime Minister retains the power to nominate senior judges— Lords of Appeal in Ordinary, Lords Justices of Appeal and the Heads of the Divisions of the High Court—but in practice does so after consulting with the Lord Chancellor. Furthermore, for historical reasons, lay magistrates in the Duchy of Lancaster are nominated by the Chancellor of the Duchy of Lancaster. The Lord Chancellor also determines which barristers are to be raised to the rank of Queen's Counsel.
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 Lord Chancellor performs several different judicial roles. He may participate in judicial sessions of the House of Lords, and is a member of the Judicial Committee of the Privy Council. (Former Lord Chancellors under the age of seventy-five years may do the same.) The Lord Chancellor is the President of the Supreme Court of England and Wales, and therefore supervises 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 is also, ex officio, a judge in the Court of Appeal and the President of the Chancery Division. (Formerly, he was the chief judge of the High Court of Chancery, which was replaced by the Chancery Division in 1873.) The Lord Chancellor is not a member of the courts of either Scotland or Northern Ireland.
Modern Lord Chancellors have in practice exercised their judicial functions very sparingly. The convention has developed that Lord Chancellors do not sit as judge in a case which involves the Government; in addition, many cases, will be outside the expertise or interest of the Lord Chancellor of the day. His functions in relation to the House of Lords and the Judicial Committee of the Privy Council are usually delegated to the Senior Lord of Appeal in Ordinary. The task of presiding over the Chancery Division is delegated to the Vice-Chancellor, a senior judge.
The present Lord Chancellor, Lord Falconer of Thoroton, has announced that, pending the reform or abolition of the office, he will no longer sit as a judge. Nevertheless, he has taken the judicial oath, and it is often said that the most important job of the Lord Chancellor is to preserve the independence of the judiciary, and to argue for the judiciary in the Cabinet.
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. Furthermore, in his capacity as Speaker of the House of Lords, he appoints fifteen Lords to the Ecclesiastical Committee of Parliament, which considers Measures passed by the Church's General Synod before they become law.
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 determine that the Sovereign suffers from a mental or physical infirmity, 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, the University of Newcastle upon Tyne and three colleges of Oxford University (namely Oriel College, St. Antony's 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.
Ceremonies
Like the Speaker of the House of Commons, the Lord Chancellor has an official residence within the Palace of Westminster. Before each day's sitting of the House of Lords, the Lord Chancellor forms part of a procession that marches from his residence to the Lords Chamber. The Lord Chancellor is preceded by the Deputy Serjeant-at-Arms or Principal Doorkeeper of the House (who bears the Mace) and by the Purse-Bearer (who carries a large purse embroidered and decorated the Royal Arms and cypher.) The Lord Chancellor is followed by his Train-Bearer; the procession is later joined by the Gentleman Usher of the Black Rod. The Mace is placed on the Woolsack, where the Lord Chancellor sits after a bishop has led the House in prayers.
The Lord Chancellor participates in the ceremony of introduction, which takes place every time a newly created peer joins the House of Lords. Formerly, the ceremony involved an elaborate ritual. First, the new peer would have to kneel before the Lord Chancellor and present his writ of summons (which indicates a peer's right to a seat in the House of Lords). After a clerk read the writ aloud, the new peer would proceed to his seat along with two other peers. All three, after taking their seats, would immediately rise, doff their hats and bow to the Lord Chancellor, and then repeat the practice two more times. The ceremony of kneeling before the Lord Chancellor and of doffing hats was deemed undignified and unnecessary, and was changed in 1998; now, new peers must merely shake hands with the Lord Chancellor during introductions.
The Lord Chancellor is also involved in the annual ceremony known as the State Opening of Parliament, during which the Sovereign delivers the Speech from the Throne (also known as the King's or Queen's Speech), outlining the agenda of the Government for the upcoming parliamentary session. (The content of the Speech is determined not by the Sovereign, but by the Prime Minister and other ministers.) When all are ready to begin, the Lord Chancellor proceeds up the steps to the Throne, kneels and presents a piece of vellum on which the Speech is written to the Sovereign. As he descends the steps to the Throne, the Lord Chancellor walks backwards, so as to keep from turning his back to the Sovereign. Upon the conclusion of the Speech, the Lord Chancellor once again kneels before the Sovereign to receive the piece of parchment, and once again descends the steps walking backwards. The ceremony of kneeling was dispensed with in the case of Lord Hailsham of St Marylebone, who suffered from arthritis. Lord Irvine of Lairg announced that he would not walk backwards whilst descending the steps to the Throne, but (despite much speculation) his successor, Lord Falconer of Thoroton, restored the tradition. At the most recent Queen's Speech, the Lord Chancellor did however announce that no one would be walking backwards and duly no one did.
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 Statute of Treasons 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 General Assembly of the Church of Scotland. 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 £207,736 and to an annual pension of £103,868. Approximately fourteen per cent of the salary is paid by the House of Lords for the Lord Chancellor's services as Speaker; the remainder is paid from the Consolidated Fund. The Lord Chancellor's salary is higher than that of any other public official, including even the Prime Minister. Lord Falconer of Thoroton has chosen to claim only £98,899 of his salary—the same amount received by other Cabinet ministers in the House of Lords.
Reform
In recent years the combined executive, legislative and judicial functions of the Lord Chancellor have been seen by some as increasingly untenable. The position of the Lord Chancellor was also undermined by public outcries against the Lord Chancellor's judicial responsibilities, particularly when the previous Lord Chancellor, Lord Irvine of Lairg, refused to rule out sitting judicially (and, in fact, he did sit as a member of the Judicial Committee of the House of Lords). The Blair Government has proposed abolishing the office altogether, but has met with much opposition from those who feel that such an official is necessary to speak on the judiciary's behalf in the Cabinet, as well as from those who oppose a sudden abolition of so ancient an office.
In 2003, Tony Blair chose 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. Lord Falconer of Thoroton, who holds the additional office of Secretary of State for Constitutional Affairs, has agreed that he will not sit as a judge in any case.
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. Recent media reports suggest that whilst the House of Lords may consent to some reforms, including the Government's plans to create a Supreme Court, it is unlikely to consent to the outright abolition of the Lord Chancellorship. 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 mentions of the Secretary of State for Constitutional affairs and instead changed them to ones about the Lord Chancellor, with the positions of Secretary of State and Lord Chancellor envisaged to be held by the same person. The final Constitutional Reform Act achieved royal assent on March 24, 2005.