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Home , Great Officers of State, Great Seal of the Realm

Lecture # 20 Lord By: Salik Aziz Vaince [0313-7575311]  Introduction . The Lord High Chancellor of Great Britain, or , is a senior and important functionary in the government of the . 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 , and the head of the judiciary in and Wales, but the Constitutional Reform Act 2005 transferred these roles to the 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 . 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 (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 , 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 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 , 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 , 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 , 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 , 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 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.

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. 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

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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. . Another adaptation is the introduction of a similar court system as used in the United States, the Supreme Court. This is an unpopular idea with many legal professionals. . In this new system Law Lords lose the ability to sit and vote in the House of Lords. Members of the Supreme Court however would be entitled to speak on matters that are not judicially sensitive. . A new speaker in the House of Lord may also be placed –who is not a minister- to avoid any clash similar to that of the Lord Chancellor’s role. . Qualifications . The constitutional Reform Act 2005 sets out that the Lord Chancellor no longer has to be a lawyer. The Prime Minister recommends the Lord Chancellor for appointment by the queen. The Lord Chancellor has to be qualified by experience and the prime Minister can now take into account any of the following:  Experience as a Minister of the  Experience as a member of either House of Parliament  Experience as a lawyer with a senior court advocacy qualification.  Experience as a teacher of law in a university  Other experience that the Prime Minister considers relevant . The Lord Chancellor has important administrative functions, as he has the responsibility of appointing court staff and providing, equipping and managing the buildings used for court business. In addition the Lord Chancellor oversees the community Legal Service. He is also responsible for overseeing the work of the Law Commission and the Council on Tribunals, and other bodies including the official solicitor’s Department, the land Registry and the public Trustee Office. He is head of the Ministry of Justice. . At a glance Role in Legislature Role in Executive Role in Judiciary

. Speaker in the House of . Member of the Cabinet . Used to sit as judge in House of Lords Lords, Head of Chancery Division

. Takes part in debates on . Part of the Govt. of the . Plays major role in appointment new laws; introduces new day; is appointed to of judges; also has power to Bills on matters this office by the prime dismiss inferior judges. connected with justice Minister into the House of Lords . Legislative Functions . The Lord Chancellor used to be the presiding officer of the House of Lords by right of prescription. The Constitutional Reform Act 2005 removed this function, leaving the choice of a presiding officer to the

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House of Lords itself. Ultimately, the Lords chose to elect a Lord Speaker, which title was already used in the Standing Orders. . 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 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 (Justices of the Supreme Court of the United Kingdom, 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 , writs and royal proclamations. The sealing is actually performed under the supervision of the Clerk of in Chancery (who holds the additional office of Permanent Secretary to the Lord Chancellor). . 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 tribunal of the British Empire (except for the United Kingdom) 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 Lord Chancellors 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 (in office 1997-2003), who did so as a

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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. . 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. . 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 , 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 Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 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 . If any three or more of these individuals, based on evidence that, as required by statute, shall include evidence provided by physicians, determine and declare by an instrument in writing, lodged with the Privy Council, 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 are transferred to a Regent, who discharges them in the name and on behalf of the monarch.

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. The Lord Chancellor is also the Keeper of the Queen's Conscience. As such, 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. . Status and Privileges . The Lord High Chancellor outranks all other Great Officers of State, with the exception of the Lord High , which has generally been vacant since the 15th century. Under modern conventions, the office of 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 Act 1351, which makes it high treason to slay (Kill intentionally) the Lord Chancellor. A 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. 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. . 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 (recent holders have taken the salary of a Secretary of State). . 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

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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 flat mate 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. However, unlike the responsibilities of other Secretaries of State, which 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. Those "protected functions" of the Lord Chancellor can only be transferred to other ministers by Act of Parliament. As a consequence, it became clear that it was extremely difficult to simply "abolish" the office of Lord Chancellor. . 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 on 24 March 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. . In May 2007, the Department of Constitutional Affairs ceased to exist, and its functions were transferred to a newly created Ministry of Justice, which also took 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. ©VLC Publishers www.vlc.com.pk Page 8

. 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, though provision was made in 1539 for non-peers who hold the to sit in between the benches in the House. 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 to be a member of the House of Commons, rather than the House of Lords or its predecessor, the Curia Regis, since Sir in 1578. . Reform of his role . The Lord Chancellor is no longer the speaker of the House of Lords. In fact he no longer has to be a member of the House of Lords. 1. He can be an MP in the House of Commons. 2. He is no longer a judge, nor is his head of the judiciary: this role has been given to the Lord Chief Justice. 3. The selection of judges is now the responsibility of the Judicial Appointments Commission, but the Lord Chancellor has some limited power to reject their selection or ask them to reconsider. . The Lord Chancellor is a Cabinet minister and currently a Member of the House of Commons. Recent reforms including the creation of the Ministry of Justice and the election of a Lord Speaker for the House of Lords have significantly altered the role of Lord Chancellor. . Ministry of Justice . On 9 May 2007, the Ministry of Justice was created. The Ministry of Justice is responsible for courts, prisons, probation and constitutional affairs, The Secretary of State for Justice and Lord Chancellor. . Election of the first Lord Speaker . On 4 July 2006, Members of the House of Lords elected their first Lord Speaker. This new role assumed some of the Lord Chancellor's responsibilities, such as chairing debates in the Lords' chamber and speaking for the House on ceremonial occasions. . Judicial Appointments Commission . A new Judicial Appointments Commission began to operate from 3 April 2006. This ended the Lord Chancellor's past position as head of the judiciary (courts of law in England and Wales) and power to appoint judges. . The role of the Lord Chancellor . The reforms of the Lord Chancellor’s role separate its different responsibilities and make a clear distinction between government, Parliament and the judiciary.  Class Activity . Discussion on the appointment, role and function of the Lord Chancellor.

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 Past paper questions . Q1. ‘An appeal to the House of Lords involves questions of great public importance’. Consider critically the role of the House of Lords in the hierarchy of the courts. With reference to decided cases, discuss the circumstances in which an appeal can be made to the House of Lords. [May/June 2010] . Q2. The judicial function of the House of Lords has now been abolished and replaced by that of the Supreme Court. Discuss critically the function and achievements of the House of Lords and consider whether, in your opinion, the time had come for a charge. [May/June 2011]

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