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Lecture # 20 Lord Chancellor By: Salik Aziz Vaince [0313-7575311]  Introduction

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Lecture # 20 Lord Chancellor By: Salik Aziz Vaince [0313-7575311]  Introduction Lecture # 20 Lord Chancellor By: Salik Aziz Vaince [0313-7575311] Introduction . The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. The Lord Chancellor is appointed by the Sovereign on the advice of the Prime Minister. The Lord Chancellor 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 Lord Chancellor is the Speaker for the House of Lords. Whereas the House of Commons votes for its Speaker, this is currently not the case with the House of Lords where whoever holds the position of Lord Chancellor automatically becomes the Lord’s Speaker. The Lord Chancellor is also a member of the Cabinet as he is head of the Department of Constitutional Affairs (formerly the Lord Chancellor’s Department). Therefore he is a direct link between the Executive and the Lords and it would be his task to feed back to the Cabinet views held within the House and whether any contentious bill will receive the support of the Lords or not. The Lord Chancellor is head of the judiciary in England and Wales. He will act as president of the planned Supreme Court. As a result of all these posts, the Lord Chancellor is in the unique position of being a member of the Executive, the Legislative and the Judiciary. In 2003 the Lords rejected a plan to abolish the position of Lord Chancellor – the government wanted the position ended as they believed that there was too much of a blur between the responsibilities of a post that found influence in all three areas of government. The Lord Chancellor is also allowed to show his political colors in debates whereas the Speaker of the House of Commons has to show political neutrality. History . The office of Lord Chancellor of England 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— ©VLC Publishers www.vlc.com.pk Page 1 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. 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 (spokesman) 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 Cardinal Thomas 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 last ecclesiastic Lord Chancellor was Lord Shaftesbury (1672-73). The Lord Chancellor . The Lord Chancellor’s position, up to 2005, was in direct contradiction to the doctrine of separation of powers. The position is a political appointment in that he is appointed (can be dismissed) by the prime Minister. He also holds office only while the Govt. of the day is in power: if there is a change of Govt. there will be a new Lord Chancellor. Previous Role . The Lord Chancellor used to play a role in all three arms of the state as he was: 1. The speaker of the House of Lords when it is sitting in its legislative capacity, and takes part in debates there; he can also introduce new bills for consideration. 2. A member of the cabinet 3. One of the judges in the House of Lords and the head of the judiciary. His role was contrary to the doctrine of the separation of powers. He had too much control over the appointment of judges. Montesquieu’s Three Branches of Power . 18th century French philosopher Montesquieu provided a separation of powers concept that serves to ensure a true democracy. ©VLC Publishers www.vlc.com.pk Page 2 . This concept revolves around the idea that a government must have its power evenly distributed between three branches to avoid a breach of powers, allowing an individual or a group to gain excessive power and risk dictatorship. These branches must not overlap; if they do so then the notion of democracy is not true. The three proposed branches are the Legislative (that passes laws), the Executive (that proposes laws), and the Judicial (that applies the law). Because one man: the Lord Chancellor, has a position that involves roles within all of these branches ( judge, cabinet minister, speaker in the House of Lords) England can be argued to not be a true democracy. This incurs the potential for the European Court of Human Rights to bring a case against the UK for its lack of equal distribution of power. Criticisms of the Lord Chancellor’s Position . Due to the Lord Chancellor’s immense power in the three arms of state many critics have arisen in protest. People have said that there is a muddled task over-lap between the Home office and the Lord Chancellor’s department. In reference more specifically to the Lord Chancellor himself there is some conflict over the fact that as a member of the House of Lords rather than the House of Commons, he cannot be called in for questioning in the House of Commons. This creates an uncertainty referring to his accountability, which is yet to be fully solved. Mainly though criticism revolves around the ineffectiveness and muddle-some nature of the English Legal System under the Lord Chancellor’s current position. Lord Goodhart, the Liberal Democrat constitutional affairs spokesman, has said “There is no other country in the world that has this extraordinary historic muddle where one house of legislature also sits as the supreme court of the land”. Erik Jurgens, a constitutional law expert and figure in the Council of Europe told MPs that the Lord Chancellor’s combination role was leaving a system open to abuse and was not in accordance with the heart of democracy. This mass audience of critics and their persistence spurred action in regards to the role of the Lord Chancellor. Recommendations for change . Due to the criticism regarding the position of Lord Chancellor and its undemocratic nature, Lord Falconer and his staff were quick to enact change. The Lord Chancellor’s Department has transformed in the Department for Constitutional Affairs, and he is now the Secretary of State for Constitutional Affairs. Political parties are still confused on the terminology and are having problems getting used to the re naming, however it is the first of many problems with the transformation. Lord Falconer has also decided to not sit as a judge in the House of Lords, or utilize his ability to sit in parliament. Instead the first Secretary of State for Constitutional affairs will focus on making his role as a cabinet minister his full-time post. Furthermore the Lord Chancellor is planning to implement a Judicial Appointments Committee. This committee will consist of 5 lawyers, 5 lay people and 5 judges. Recommendations will then be put ©VLC Publishers www.vlc.com.pk Page 3 forward to the Prime Minister. The idea of a judicial promotion ladder with minor appointment for lawyers in their thirties is also being encouraged. The assessment of the QC rank though is still in the balance as the Lord Chancellor and others weigh the benefit of the status for the legal system.
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