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The Lord Chancellor

The office of Lord Chancellor is among the most ancient in the British constitutional system, and its existence and multiple roles have frequently been held up as an obvious and gross breach of the principle of separation of powers which, theoretically, underpins the British constitution. There has been much talk in recent years of abolishing the office and dividing its functions between two or even three office-holders – a Minister of Justice to carry out the administrative roles relating to the judicial system, a President of the Supreme Court, and a Speaker of the House of Lords. At the very least, it is argued, the fact of the Lord Chancellor being a cabinet minister and a senior member of the government of the day ought to preclude him from sitting as a Lord of Appeal. Now, following the resignation of Lord Irvine of Lairg as Lord Chancellor and the appointment of Lord Falconer of Thoroton to replace him on what appears to be a strictly interim basis, the demise of this historic office may be in sight. However, as on a number of previous occasions, notably the restructuring of the House of Lords, the present Government has announced its intention to sweep away the old without any clear idea of what should be the new that will replace it.

As is the case with many elements of the British constitution, the role of Lord Chancellor has evolved piecemeal over many centuries. The origins of the office extend back before the Norman Conquest. At that time, all the functions of central government were carried out by the king and members of his household, all of whom were constantly on the move around the country. The reasons for this itinerancy, which continued until the 16th century, were very simple. First, government was largely personal, carried out by the king and his immediate advisers; second, the king received most of the rents and other income due to him in the form of food – it was more convenient for the king to go to the food than to take the food to the king. Only gradually did the various departments of state which emerged to carry out various functions develop into distinct bodies with their own personnel and permanent bases. Initially, administrative personnel were few in number and closely connected with the king – until the treasury acquired a fixed base at Winchester in the late 11th century, it operated from the king’s bedchamber, that being where the royal treasure was kept!

Extrapolating backwards from the Constitutio Domus Regis (‘The establishment of the King’s household’) drawn up under King Stephen (1135–54), it appears that by the first half of the 11th century, the clergy of the king’s chapel, probably the only persons within the royal court who were literate, acted as the royal secretariat. At this time, the quantity of documents produced was very small, mainly charters and writs recording grants of land. After the Norman Conquest, this writing office developed into the king’s chancery, still responsible for producing documents, but on an increasingly large scale as royal administration developed. Its personnel became full-time administrators, though they were still usually in holy orders for three reasons. The first was that literacy remained largely confined to the clergy until the 13th century, and only spread very gradually from then on. The second was that administrative personnel did not receive salaries, and granting them high office within the church – often at this time within the king’s gift in practice if not in theory – was a convenient means of rewarding them. Finally, as the clergy were, theoretically at least, celibate, offices were less likely to become hereditary.
From the reign of Henry I (1100–35), if not a little earlier, the head of the chancery bore the title of Chancellor and was almost invariably a bishop. As he was often the most senior ecclesiastic at court, he frequently acted as the king’s confessor. As the chancery became an increasingly important element of the royal administration in the 12th century, so the Chancellor became a major figure in government, not least because he was responsible for the Great Seal which was used to authenticate all royal documents. After the post of justiciar went into abeyance, the Chancellor was in practical terms the king’s chief minister.

From the later 13th century, the Chancellor and his chancery ceased to travel with the king and acquired a permanent base at Westminster. As the common law and machinery of justice and administration developed, the Chancellor also acquired a steadily increasing legal role. This was in part because of the emergence of equity, which began about this time. One of the king’s traditional roles, sufficiently significant to be embodied in the oath he took at his coronation, was to maintain the law and to do justice to his subjects. Originally, the king dispensed justice personally, but from the 12th century, this task was delegated to professional judges – King John (1199–1216) was the last monarch to judge cases regularly. A system of royal courts administering law common to the whole of England slowly superseded the overlapping systems of local courts and customary law. However, the common law was a relatively rigid instrument and did not always give even a successful litigant an appropriate remedy, not least because the normal remedy was an award of damages only. A plaintiff complaining of a trespasser on his land, for example, might gain damages to reflect the loss caused by the trespass, but not be able to regain possession of the land. Subjects therefore continued to petition the king personally, pleading for him to do justice as an act of grace. As the Chancellor was usually the king’s confessor, and as such ‘keeper of the king’s conscience’, such petitions were very often passed to him to deal with. The remedies he granted were at his discretion, both in the form of the remedy and in whether a remedy was granted in the first place. From these ad hoc beginnings, there developed a formal Court of Chancery and an entire system of equity, which operated in parallel with the common law and its courts under the Judicature Acts of the 1870s.

The development of the Chancellor’s legal role, as well as the spread of education among the laity and the emergence of a legal profession, meant that from the middle of the 14th century, the Chancellor was usually a layman and increasingly a professional lawyer. Cardinal Wolsey, Chancellor under Henry VIII from 1515 to 1530, was the last Chancellor to be in holy orders, and even he was very much a ‘political’ bishop; he had made his career within the royal household, initially as Henry VII’s personal chaplain, and although Archbishop of York from 1514, he never set foot in his episcopal province until after his dismissal as Chancellor.

Following the dismissal of Wolsey and execution of his successor, Sir Thomas More, primacy among the king’s ministers moved to the king’s secretary, who from the latter part of the 16th century became known as the Secretary of State (intermittently during Elizabeth I’s reign and as normal practice from the early 17th century there were two). Thenceforth, the role of the Chancellor became confined to the legal sphere. At the same time, however, his status increased; by the reign of James I (1603–25), he was always a peer and was accorded the title of Lord Chancellor.

Most of the Lord Chancellor’s responsibilities accrued to him on an informal basis. From the 17th century, he became Speaker of the House of Lords, and as cabinet government emerged early in the 18th century, he became a cabinet minister. As head of the judiciary, he acquired a central role in the appointment of judges and QCs, and power of dismissal over judges below the High Court. In 1885, a Lord Chancellor’s Department was created within the Civil Service to deal with the Lord Chancellor’s increasing workload, in particular the administration of the courts – the Lord Chancellor had overall responsibility for all courts in England and Wales except the magistrates’ courts (administered by local committees) and coroner’s courts, which are the responsibility of the Home Office. He also had overall responsibility for the legal aid scheme. During the 20th century, and perhaps rather earlier, the Lord Chancellor also came to have a significant responsibility in dealing with constitutional change, in particular change involving the legal system or the House of Lords.

By the 19th century, it was unusual for a man with the necessary expertise in the law to be also the holder or heir to an hereditary peerage, so the practice developed of an incoming government seeking a peerage for their candidate for the office. Before the Life Peerages Act 1958, this was usually an hereditary viscountcy; since then, aspiring Lord Chancellors have been granted life peerages.

Clearly, the multiple roles of the Lord Chancellor defy the doctrine of the separation of powers, and in recent years it has frequently been postulated that his position as a member of both the executive and the judiciary means that any House of Lords panel on which he sits cannot be an independent and impartial tribunal for the purposes of Article 6 of the European Convention on Human Rights. Does this matter? The issue has yet to be tested, either by the European Court of Human Rights or by a domestic court since the Human Rights Act came into force. It has been argued that the Lord Chancellor can only properly carry out his role as head of the judiciary and act as the representative of his brethren in relation to the government of the day if he is a member of the inner circle of any government. It is also argued that the personal and professional integrity of any holder of the office is sufficient to prevent abuse of his unique position.

I would suggest that in any event, the issue of whether a Lord Chancellor should sit as a member of the House of Lords in its appellate capacity must depend to a great extent on the background and experience of the person concerned – a Lord Chancellor who is primarily a politician rather than a judge should not sit. Further, no Lord Chancellor should sit on any appeal on a matter which is directly or indirectly political in nature. This begs the question of what is ‘political’, but common sense suggests that, as is already the case when a judge declares a personal interest in any matter, a Lord Chancellor should err on the side of caution.

A glance at those who have held the office of Lord Chancellor in recent years suggests that they can be divided into two groups; those who are primarily lawyers and reach the office from the senior ranks of the judiciary, and those who are essentially politicians with a legal background. A good example of the former category was Frederick, 1st Viscount Maugham, a Lord Justice of Appeal before becoming Lord Chancellor under Neville Chamberlain. After he left office in 1940, Maugham continued to sit as a Lord of Appeal in Ordinary. A more recent example is Lord Mackay of Clashfern, previously Lord Advocate – the senior law officer of the Crown in Scotland – from 1979–84 and a Lord of Appeal in Ordinary from 1985 until his appointment as Lord Chancellor in the Thatcher Government in 1987. In the latter category are Lord Hailsham of St Marylebone, who was first elected to the House of Commons in 1938, held a number of mainstream ministerial posts in various Conservative Governments from 1945 and was one of the four potential successors to Harold Macmillan in 1963 before becoming Lord Chancellor in 1970, and most recently Lord Irvine and Lord Thoroton, although the former served as a Deputy High Court Judge from 1987 to 1997. It has already been announced that Lord Falconer will not sit as a judge.

Although there has been much discussion in recent years of abolishing the office of Lord Chancellor and dividing its functions among others, the announcement on 12 June 2003 that this change was due to take place at some point in the relatively near future came as a surprise and, to many, an affront to the British constitutional tradition, since there was no prior consultation, the announcement was made to the media rather than to Parliament, and the Queen was not informed. It remains to be seen when the changes announced by the Government will take place and what form they will take. However, the Government has announced that the power of recommending candidates for appointments in the higher judiciary to the Prime Minister – largely done on the basis of ‘secret soundings’ among current judges and senior barristers – will be removed from the Lord Chancellor and a Judicial Appointments Commission will be created and will operate in a more open manner.

At the same time as Lord Falconer’s appointment was made public, it was also announced that the Lord Chancellor’s Department was to be renamed the Department for Constitutional Affairs, and changes would be made to its responsibilities. In particular, the Scottish and Welsh Offices will cease to be separate departments and become sub-departments within the Department for Constitutional Affairs. This will remove the duplication which has been evident since devolution. It was further announced that the re-named Department will work together with the Home Office on a package of changes to the criminal justice system. Once again, no timescale was suggested.

Watch this space!