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,
ranking only after the
Lord High
Steward. The Lord Chancellor 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for Constitutional Affairs before that post was superseded by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
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. In any event, the office has been
continuously occupied since the Norman Conquest. The chancellor
headed the writing office, or
chancery.
Formerly, the Lord Chancellor was almost always a
churchman, 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 adviser 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 (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." Churchmen 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, laymen tended to be more favoured for
appointment 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).
Former 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 canon.
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. 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 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.
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. 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.
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.
King Hilary and the
Beggarman, a children's poem by
A.A. Milne, relates the
story of a fictional Lord High Chancellor, "Proud Lord Willoughby",
who is dismissed for refusing to obey his king.
See also
References
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