Lord Chancellor

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.[4] In any event, the office has been continuously occupied since the Norman Conquest. The staff of the growing office became separate from the king's household under Henry III and in the 14th century located in Chancery Lane.[5] The chancellor headed the writing office or chancery.[6]

Formerly, the lord chancellor was almost always a member of the clergy, 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 Cardinal Thomas Wolsey, who was lord chancellor and archbishop of York, was dismissed for failing to procure the annulment of Henry VIII's marriage to Catherine of Aragon, 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. Anthony Ashley Cooper, 1st Earl of Shaftesbury (1672–73) was the last lord chancellor who was not a lawyer, until the appointment of Chris Grayling in 2012.[7] The three subsequent holders of the position, Michael Gove (2015–2016), Liz Truss (2016–2017) and David Lidington (2017–2018) are also not lawyers. However, the appointment of David Gauke in January 2018 meant that once again the lord chancellor was a lawyer.

At the Union of England and Scotland, the lord keeper of the Great Seal of England became the first lord high chancellor of Great Britain, but Lord Seafield continued as lord chancellor of Scotland until 1708; was re-appointed in 1713; and sat as an extraordinary lord of session in that capacity until his death in 1730, since which time the office of lord chancellor of Scotland has been in abeyance.

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 their 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 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 became known as Lords Commissioners of the Great Seal. Lords commissioners of the Great Seal have not been appointed since 1850.

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".

The lord high chancellor outranks all other great officers of state with the exception of the lord high steward, which 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 being 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, they precede all non-royal individuals except the lord high commissioner to the General Assembly of the Church of Scotland. Although lord chancellor "of Great Britain", they maintain a position in the order of precedence in Northern Ireland; there, they outrank 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 (recent holders have taken the salary of a secretary of state).

The Viscount Hailsham wearing the uniform of the Lord High Chancellor, depicted on a cigarette card produced for the Coronation of King George VI and Queen Elizabeth in 1937

The lord chancellor, on formal state occasions such as the State Opening of Parliament, wears legal court dress consisting of a black silk velvet cutaway tailcoat with cloth covered buttons, waistcoat and breeches worn with white shirt, lace stock and cuffs, black silk stockings and cut-steel buckled patent court shoes. Over this is worn a black silk damask robe of state with a long train trimmed with gold lace and frogging, with a black silk 'wig bag' attached to the flap collar at the back. A full-bottomed wig is worn and, in the past, a black tricorne hat.

When the lord chancellor sat in the Lords, they wore an undress version of court dress, consisting of the court dress but made of black superfine cloth rather than silk velvet, and over that a black silk robe with a train with the wig bag attached. The wig and tricorne was also worn.

Now that the lord chancellor is appointed from the Commons rather than the Lords, they wear a normal business suit and only wear full ceremonial dress for state occasions. There is an unofficial precedent that lord chancellors that do not have a legal background do not get to wear a wig. Jack Straw (a qualified barrister) initially did not wear one but did so afterwards, as did his immediate successor, Kenneth Clarke (a barrister and Queen's Counsel); Chris Grayling, Michael Gove, and Liz Truss (none of whom have legal backgrounds) have not done so. Robert Buckland QC MP, continued the tradition of wearing the full court dress along with the full bottomed wig, as he is a barrister. In 2019 at the Approbation of the new speaker of the Commons, Sir Lindsay Hoyle, he wore full court dress along with the full bottomed wig and a tricorne.

Insignia

Heraldic banner of Cardinal Thomas Wolsey, who was the archbishop of York and lord chancellor, showing the arms of the See of York impaling his personal arms, with a cardinal's hat above. The griffin supporter holds the lord chancellor's mace

The historic insignia of the lord chancellor is a purse containing the Great Seal and a mace or staff of office.[11] The Elizabethan play Sir Thomas More opens Scene II as follows: "Chelsea. A Room in More's House. A table being covered with a green carpet, a state cushion on it, and the Purse and Mace lying thereon, enter Sir Thomas More".

Jack Straw was the first commoner to be appointed as Lord Chancellor since 1587.

In the early 21st century, the Labour government viewed it as untenable that all three political functions (executive, legislative and judicial) should be continued in the historical office of Lord Chancellor. In the Government's view, this infringed Montesquieu's principle of separation of powers which declared that no person should have access to all of the three political functions. The lord chancellor could exercise all three powers, and some, such as Quintin, Lord Hailsham, often did so. The Labour Government also took the view that these powers were inconsistent with the European Convention on Human Rights.

However, proposals by the Blair government simply to abolish the office met with opposition from those who felt that such an official was necessary to speak on the judiciary's behalf in Cabinet, as well as from many who opposed the sudden abolition of such an ancient office. In 2003, Tony Blair chose his close friend and former flatmate Lord Falconer 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. Thus Lord Falconer duly appeared the following day in the House of Lords to carry out his duties from the Woolsack. The Lord Chancellor's Department was, however, 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.[12] 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 its 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.[13] 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 HM 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 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 remained a member of the Prime Minister's Cabinet, retaining most of the office's original statutory functions.

In May 2007, the Department of Constitutional Affairs was abolished and its functions were transferred to a newly created Ministry of Justice which also took charge of certain responsibilities transferred from the Home Office. Lord Falconer retained the title, salary and office of lord chancellor, as well as being created the inaugural Secretary of State for Justice.

Prior to Tony Blair's premiership, were a person not a peer to be appointed to the office of lord chancellor, he would be raised to the peerage upon appointment, though provision was made in 1539 for non-peers who are great officers of state to sit in between the benches in the House.[14] 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 or to have a legal background.[lower-alpha 4] In June 2007, Jack Straw MP was appointed lord chancellor and secretary of state for justice, thus becoming the first lord chancellor to be a member of the Commons, rather than the House of Lords or its predecessor, the Curia Regis, since Christopher Hatton in 1587.[15][16]

Both Straw and his immediate successor, Ken Clarke, were barristers. In 2012 Chris Grayling became the first justice secretary without a legal background, in which he was followed by his three immediate successors. One of these, Liz Truss in 2016, became the first woman to serve as lord chancellor.

A fictional depiction of a lord chancellor occurs in Iolanthe, the frequently-revived comic opera by W. S. Gilbert and Arthur Sullivan.[17][18][19] The lord chancellor is the central character in the work but is identified only by his title.

William 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 Roberts, 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.

Anthony Trollope's Palliser novels feature a number of references to fictitious lord chancellors. The Liberal Lord Weazeling holds the office in the Liberal governments of Mildmay and Gresham in Phineas Finn and Phineas Redux; the Conservative Lord Ramsden holds the position in the Duke of Omnium's coalition government in The Prime Minister. In Gresham's final government at the end of The Prime Minister, the former Liberal Attorney General, Sir Gregory Grogram, is finally given the position, which he had desired for some time.

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.

In David Gurr's thriller A Woman Called Scylla, set in 1977, the main villain is an utterly ruthless and unscrupulous lord chancellor, who grossly abuses his many functions and powers in order to cover up his treason during the Second World War and as a stepping stone towards becoming prime minister. As the writer clearly states, this was not intended to refer to the actual holder of the office at the time of writing or at any other time.

The Lord Chancellor is portrayed by Preston Lockwood in “Rumpole and the Tap End” episode of the Rumpole of the Bailey TV series. He is shown making himself a necklace/chain of office from coloured paper clips, whilst reprimanding Judge Featherstone.

• Alienation Office
• List of Lord Chancellors and Lord Keepers
• List of Lord Chancellors of Scotland
• List of peerages created for Lord Chancellors and Lord Keepers
• Lord Keeper of the Privy Seal