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This consultation paper relates to the abolition of the office of Lord Chancellor. It forms a further part of the Government's continuing drive to modernise the constitution in order to make it more relevant and effective for the needs of today. The House of Lords is already considering future arrangements for its Speakership and I am in consultation with the judiciary about the Lord Chancellor's judicial functions. This paper therefore sets out the Government's plans for handling the Ministerial functions of the Lord Chancellor in the future, and seeks views on a limited number of functions which arguably do not fit neatly with the Departmental responsibilities of a senior Secretary of State at the beginning of the 21st century.
This paper discusses the consequences for, and options for dealing with, certain of the Lord Chancellor's functions which do not relate to his principal roles as Speaker of the House of Lords, sitting as a judge or as a Minister. This document should be considered alongside the three papers published on 14th July. These are Constitutional Reform: A New Way of Appointing Judges (CP 10/03); A Supreme Court for the United Kingdom (CP 11/03); and the Future of Queen's Counsel (CP 08/03). A separate document (14/03) is being published concurrently on House of Lords Reform.
The abolition of the office of Lord Chancellor will put the relationship between the executive, the judiciary and the legislature on a modern footing, and clarify the independence of the judiciary. The office of Lord Chancellor has been the subject of criticism for some time. In particular by combining the three primary roles of Minister, Judge and Speaker of the House of Lords, these distinct functions have become obscured, even confused. Our existing arrangements have become increasingly hard to sustain, even as we seek to persuade developing countries to adopt clearer constitutional mechanisms and provide for the insulation of the judiciary from political pressures. But we have hitherto not followed our own advice. The Government believes that it is time to separate out the different roles of the Lord Chancellor to bring greater transparency and increased public confidence.
It can no longer be appropriate for a senior judge to sit in Cabinet or for a Government Minister to be our country's senior judge. I have myself made it clear that I shall not sit judicially, but it is now time to bring such anachronistic and questionable arrangements to an end.
As Secretary of State for Constitutional Affairs I shall continue to have a duty to safeguard the independence of the judiciary, both within Government and outside, and to ensure proper consideration of judicial concerns. In the recent consultation paper on a Judicial Appointments Commission I have asked for views on whether that responsibility should be enshrined in statute.
The Lord Chancellor has served as Speaker, as Head of the Judiciary and as Cabinet Minister. Each of these roles deserves to be given an important priority, which in practice is not possible. As Secretary of State and Lord Chancellor I am in charge of a major Department of State with large spending and public service delivery responsibilities. The public should expect, rightly, that I devote my full attention to these duties. They should equally be able to expect that I also devote my energies to the other important functions which have traditionally fallen to the Lord Chancellor. Each is demanding in its own right, and it is time this was recognised.
This paper gives a flavour of the range of the Lord Chancellor's duties as they are currently constituted. A few of these functions now appear to be the legacy of history rather than integral parts of the duties of the Departmental Minister for courts and tribunals, legal services and constitutional matters (or of a judge or of Speaker of the House of Lords). I very much welcome views on the future handling of the Lord Chancellor's responsibilities in relation to ecclesiastical patronage, Visitatorial jurisdiction, and charities and schools from as wide a range of interests as possible, but particularly from those directly affected or who have had links with the Lord Chancellor.
Lord Falconer of Thoroton
Please send your response by 7 November 2003 to:
Jessica Litten
Department for Constitutional Affairs
Reforming the Office of the Lord Chancellor
5th Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 020 7210 8599
Fax: 0870 739 4266
Email: LC Functions
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation paper in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Further copies of this consultation paper can be obtained from the above address or by phoning 020 7210 8599.
Welsh copies of this consultation paper are available on request.
This paper outlines the responsibilities of the office of Lord Chancellor. It sets out for consultation issues in relation to the Lord Chancellor's roles that do not relate to the Speakership, his functions as a Departmental Minister or his capacity as Head of the Judiciary.
It refers briefly to the history of the office of the Lord Chancellor (Chapter 1) and outlines the Government's approach to its reform (Chapter 2). Chapter 3 touches on the Lord Chancellor's role as Head of the Judiciary, his responsibilities for the appointment and the discipline of judges, his roles in relation to Parliament and his functions as a Minister of the Crown. In Chapter 4 it describes the responsibilities of the Lord Chancellor's "other Departments" - The National Archives, Her Majesty's Land Registry and the Northern Ireland Court Service.
Chapter 5 specifically seeks views on other functions, which do not sit obviously with the main work of his Departments. In particular it seeks views on:
Ecclesiastical Patronage: since the 14th century, the Lord Chancellor has been responsible for appointing Anglican priests to those livings and canonries where he holds patronage. The paper explains current arrangements and seeks views on how this patronage might best be exercised when there is no longer a Lord Chancellor. Options include the patronage continuing to be exercised through a Minister of the Crown, or transferring the patronage to the Church of England in some form.
Visitatorial functions: the Lord Chancellor has certain visitatorial duties in his own right and on behalf of The Queen at a number of universities, colleges and other institutions. In many cases this function means adjudicating on grievances or other complaints from students or other members of the institution or determining how their rules should be construed. Although legislation is proposed to reduce the burdens in respect of academic institutions, some visitatorial functions will remain and will have to be dealt with in some way when the office of Lord Chancellor has been removed.
Charitable and other functions: the paper gives examples of specific functions carried out by the Lord Chancellor in relation to certain charities or schools. While the Department is in touch with interested parties, it draws attention to the need for specific change.
The Annexes detail the key responsibilities of the Department for Constitutional Affairs (DCA) and give a list of statutory references to the Lord Chancellor in the Public and General Acts which refer to England and Wales, or the UK, and in primary legislation for Northern Ireland.
This paper sets out the Governments' intentions to give effect to its commitment to abolish the Office of Lord High Chancellor. It details the wide range of responsibilities which fall to him. The abolition of the office of Lord Chancellor is part of a wider programme of constitutional reform. This paper follows the consultation papers on the Judicial Appointments Commission (CP 10/03), the future of the Queen's Council (CP 08/03) and a Supreme Court for the United Kingdom (CP 11/03), which were published on 14th July. A further paper on the reform of the House of Lords is being published alongside this one. It is intended that the Lord Chancellor's responsibilities as a Departmental Minister should transfer to the Secretary of State for Constitutional Affairs.
This document specifically focuses on the Lord Chancellor's ecclesiastical patronage, his visitatorial functions and his functions in relation to certain charitable and other institutions. It does not address issues in relation to his roles as Speaker of the House of Lords, Departmental Minister or as Head of the Judiciary. It is limited to the consequences of the abolition of the office of Lord Chancellor. Some may see this as an opportunity to canvas other changes to our constitutional arrangements or to the establishment of the Church of England. The Government's position is clear: the options described in this paper are not intended to affect the fundamental status of the Church of England. The functions on which views are sought, together with specific questions to form a basis of the consultation, are set out in Chapter 5.
This paper is aimed at all parties who will be affected by the abolition of the office of Lord Chancellor. Consultation is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. The Code criteria set out in Annex C has been followed, except in relation to the length of the period of consultation. The Government has decided to have a reduced period of formal consultation in this instance for four main reasons. First, as mentioned above, we are not consulting on the broad principles of the change, but on relatively narrow issues relating to the practical disposal of a small range of important functions. Secondly, we are consulting separately and specifically with those groups, bodies and institutions which we know are affected. This consultation will address the impact of the changes on consultees and the ways in which we can deal with it. This will be a continuing process, not constrained by the formal consultation period of this document. Thirdly, as mentioned above, the abolition of the office of Lord Chancellor is part of a wider programme of constitutional reform and needs to be considered in the context of decisions to be made also in relation to the proposed Judicial Appointments Commission and new Supreme Court. There is therefore value in a common closing date for formal responses which can also address issues raised by all the papers at the same time, although unfortunately it was not possible to issue this paper at the same time as the earlier three papers. Finally, the Government has made it clear that it hopes to complete the abolition of the Office of the Lord Chancellor within 18 months and the timetable has been set to enable and inform the preparation of the necessary legislation. For all of these reasons, Lord Falconer, the Secretary of State for Constitutional Affairs and Lord Chancellor, has approved a shorter consultation period.
An initial analysis of the potential constitutional changes discussed in this paper indicated no impact on business, charities or the voluntary sector. Consequently, no Regulatory Impact Assessment is attached to this paper but the position will be reviewed in light of responses received. Respondents are particularly invited to detail impacts that have not been identified when responding to this paper.
A list of consultees can be found in Annex B. Those being consulted include the judiciary, legal professional bodies, the Church of England, charities, those universities and institutions in relation to which the Lord Chancellor has a role, Government Departments and public bodies.
The origin of the office of the Lord Chancellor was as secretary to the medieval Kings of England. In this role the Chancellor was responsible for the supervision, preparation and dispatch of the King's letters, which entailed the use of the Sovereign's seal. In due course the Chancellor took on further administrative functions on behalf of the Sovereign. Although the Lord Chancellor has fulfilled a variety of different roles throughout history, it has consistently been his duty to hold the Great Seal of the Realm, which has come to symbolise his office.
In view of his importance in the King's Council the Lord Chancellor came to preside over Parliament when the Monarch was not personally available. The Lord Chancellor also came to exercise a judicial role as the source of equity in the Court of Chancery (for redress when common law or precedent did not apply or produced an unfair outcome) on the King's behalf. Therefore, the Lord Chancellor was described as 'Keeper of the Royal Conscience'. When the Court of Chancery was combined with the common law courts to become part of the single court system, this separate identifiable role ceased to exist.
In addition, as Speaker of the House of Lords, the Lord Chancellor also came to exercise the jurisdiction of that House. For more information on this see the Consultation Paper, A Supreme Court for the United Kingdom, paragraph 10.
By the end of the 19th century, the office of Lord Chancellor also began to acquire a permanent administrative staff, which in time has developed into a government department. The office of the Lord Chancellor acquired a significant range of new responsibilities for the higher courts in England and Wales when the Courts Act 1971 came into force in 1972. Other responsibilities have been added progressively over the decades, including those for criminal legal aid and the administration of a number of tribunals.
In 2001 various responsibilities of the Home Secretary were transferred to the Lord Chancellor, these included those relating to constitutional affairs, those in respect of Royal affairs, and for relations with the Church and Crown Dependencies. Also in 2001, the Lord Chancellor took over responsibility for House of Lords Reform from the Cabinet Office (see consultation paper Next Steps for the House of Lords on how the department is taking this forward). In 2002, responsibility for national and European electoral law, and the law relating to political party funding and referenda were also transferred.
As part of the continuing drive to modernise the constitution and public services, the Prime Minister announced on 12th June 2003 the creation of a new Department for Constitutional Affairs. This would incorporate most of the responsibilities of the former Lord Chancellor's Department, but enable the Minister to be freed from some activities, such as running the judicial selection process, and sitting as a Judge or Speaker in the House of Lords. Once the Judicial Appointments Commission and new Supreme Court are in place, the post of Lord Chancellor will be abolished, at least in its present form, putting the relationship between the Executive, Legislature and the judiciary on a modern footing. (The new arrangements for judicial appointments and the Supreme Court are discussed in the Consultation Papers, A New Way of Appointing Judges and A Supreme Court for the United Kingdom.)
The Government's objective is to clarify the ministerial responsibilities which will be transferred to the Secretary of State for Constitutional Affairs, and to remove those duties and functions which are inappropriate to a Government Minister in the 21st century. The majority of the Lord Chancellor's responsibilities as a Departmental Minister will be progressively transferred to the Secretary of State for Constitutional Affairs. The exceptions are those responsibilities that are more appropriate to the Judicial Appointments Commission and some which relate to children and families. As the first step in this process a Transfer of Functions Order has already been made. A further Transfer of Functions Order will be made later in the year, with relevant legislation to deal with those functions requiring legislative change being introduced into Parliament as early as Parliamentary time allows.
Lord Falconer has been appointed as Secretary of State for Constitutional Affairs and Lord Chancellor until such time as the destination of all the Lord Chancellor's functions have been settled and that office has been abolished. Until that time Lord Falconer will continue to carry out the Lord Chancellor's functions. Some suggest that the title of Lord Chancellor (but not its current wide range of responsibilities) should be retained for use in relation to another public office to maintain the link with the past. However, until the office is abolished, clearly the title cannot be used in relation to any other office.
Part of the purpose of reforming the office of Lord Chancellor is to address the confusion of roles his office has produced. To create a new office (or rename an existing one) will in all probability add to that confusion, rather than reduce it.
The Lord Chancellor is a senior Judge and Head of the Judiciary in England and Wales and Northern Ireland. However, the current Secretary of State has made it clear that he will not sit in any judicial capacity in any part of the UK.
Nevertheless, by law the Lord Chancellor is President of the Supreme Court of Judicature of England and Wales (which consists of the Court of Appeal, the High Court of Justice and the Crown Court, as defined by the Supreme Court Act 1981). He is also President of the Chancery Division and a Judge of the Court of Appeal. Of more practical importance, the Lord Chancellor is the presiding Chairman of the Appellate Committee of the House of Lords (that is the House of Lords sitting in its judicial capacity) and a member of the Judicial Committee of the Privy Council, where he usually presides. (For more details on the work of the Appellate Committee and the Judicial Committee of the Privy Council see the Consultation Paper, A Supreme Court for the United Kingdom), paragraphs 8-17).
Although the Lord Chancellor's formal title is Lord High Chancellor of Great Britain, his functions in relation to Scotland are relatively limited. As a member of the Appellate Committee of the House of Lords he can sit to hear Scottish civil appeals, and he appoints members of some tribunals which have jurisdiction in Scotland as well as in England and Wales.
The Lord Chancellor's responsibilities in respect to Northern Ireland are described at paragraph 27. He does not sit as a judge in that jurisdiction (except when hearing appeals from the Province as a member of the House of Lords Appellate Committee or the Judicial Committee of the Privy Council in the exercise of its devolution jurisdiction).
The Lord Chancellor is responsible for the appointment, or making recommendations for the appointment, of a large number of full-time and part-time judicial posts. His role in respect to the judicial appointments in England and Wales is described in more detail in the Consultation Paper, A New Way of Appointing Judges, paragraphs 3-9. For more details pertaining to recent issues in Northern Ireland, see paragraph 32. The Lord Chancellor also currently appoints lay magistrates in England and Wales (see the Consultation Paper, A New Way of Appointing Judges, paragraphs 61-68), and Justices of the Peace in Northern Ireland. The Consultation Paper, A New Way of Appointing Judges proposes the Secretary of State for Constitutional Affairs retains responsibility over the policy for appointments, but that the mechanics of selection are carried out independently. The Lord Chancellor also has responsibility for dealing with judicial discipline and complaints against judges. For more info, see the Consultation Paper, A New Way of Appointing Judges, paragraph 100-108 for England and Wales, and the Justice (Northern Ireland) Act 2002 for new arrangements in Northern Ireland on removals and complaints.
Successive Lord Chancellors have seen the fundamental purpose of their role to be the safeguarding of judicial independence. Lord Falconer too has made it clear that he sees this as a fundamental part of his responsibilities, both as Lord Chancellor and as Secretary of State. The Secretary of State for Constitutional Affairs will retain the role of protecting judicial independence, both within and outside government. (See the Consultation Paper, A New Way of Appointing Judges, Question 17 on whether this responsibility should be enshrined in statute.)
The Lord Chancellor is ex officio Speaker of the House of Lords and is under a duty to attend as Speaker, to sit on the Woolsack and preside over the House, except when it is in Committee.
Following the announcement of the Government's intention to abolish the Office of Lord Chancellor in its current form, the House of Lords has set up a Select Committee to consider the future arrangement for its Speakership. That Committee has been asked to report by the end of the current Session. It is for the House of Lords itself to determine how it conducts its business and the arrangements for the Speakership in the future. The Government has made it clear it will do everything possible to facilitate this consideration. This document does not concern itself with the role of Lord Chancellor as Speaker of the House of Lords except to the extent that the changes now planned to the office will necessitate further consideration of the Speakership.
Sitting as a judge, considering applicants for judicial appointments, or sitting as Speaker of the House of Lords are activities which do not fall to the Secretary of State for Constitutional Affairs and which he will not carry out once the post of Lord Chancellor has been abolished. He will, however, assume responsibility for almost all of the Lord Chancellor's Departmental functions, apart from those in relation to children and families, including responsibility for the Children and Family Court Advisory and Support Service (CAFCASS), which is being transferred to the Secretary of State for Education and Skills.
The Lord Chancellor as a Departmental Minister is responsible for the administration of the courts and tribunals, legal aid and legal services, civil and family law reform in England and Wales and constitutional matters through the Department for Constitutional Affairs. (These responsibilities are described more fully in Annex D.) A list of statutory references to the Lord Chancellor's functions in Public and General Acts of Parliament which refer to England and Wales, or the UK as an entirety, is at Annex E.
Traditionally, the Lord Chancellor has responsibility for the Great Seal of the Realm. The Great Seal is used to signify the Royal will and authenticate acts of the Sovereign or the Government acting in the name of the Monarch. Documents which are normally passed under the Great Seal include Royal Proclamations, Writs and Letters Patent. These can be used, for example, to confer peerages. The Great Seal may be used to put into Commission various powers inherent in the Crown, such as when The Queen authorises commissioners to open Parliament. The Great Seal Act 1884, and rules made thereunder, govern the procedure for passing Instruments under the Great Seal. The Clerk of the Crown in Chancery is an independent Officer of the Crown as well as being an Officer of the Chancellor by virtue of the latter's role as Keeper of the Great Seal.
In view of the importance of the Great Seal it has to be kept in safe custody and always available for use. By virtue of his role as the Keeper of the Great Seal the Lord Chancellor has been regarded as one of the most senior of the Ministers of the Crown. He has a key responsibility in the execution of executive orders. Although arguably distinct from his other duties as a departmental Minister, the Lord Chancellor's functions in respect of the Great Seal are unquestionably Ministerial and the Government intends that for the future those responsibilities should be transferred to the Secretary of State for Constitutional Affairs.
In addition to the above, the Secretary of State for Constitutional Affairs will have Ministerial oversight of the National Archives, Her Majesty's Land Registry and the Northern Ireland Court Service. The National Archives and Her Majesty's Land Registry, are both formally agencies of the Department for Constitutional Affairs, as well as departments in their own right. The Northern Ireland Court Service is a separate civil service of the Crown established under the Judicature (Northern Ireland) Act 1978 and reporting to the Lord Chancellor.
Under the Public Records Act 1838, the Public Record Office (PRO) was set up as a non-ministerial government department, with the Master of the Rolls acting as Keeper of Public Records and the official head. Under the Public Records Act 1958, the PRO became a ministerial department under the Lord Chancellor and the Master of the Rolls became the ex officio Chair of the Lord Chancellor's Advisory Council on Public Records. While retaining its status as a Government Department, the PRO also became an Executive Agency in 1992. A Royal Warrant of 2003 joined the PRO with the Historical Manuscripts Commission to form a new organisation called the National Archives (TNA). The Lord Chancellor continues to be responsible for the public records, wherever they are located, although a number have been delegated to the Keeper.
Her Majesty's Land Registry was established as a government Department in 1862 with the Registrar (now the 'Chief Land Registrar') conducting the business and the Lord Chancellor holding ministerial responsibility. The Land Registry currently operates under the Land Registration Acts 1925 to 1997. The Land Registration Act 2002 will come fully into force on 13 October 2003, replacing all earlier land registration legislation.
On behalf of the Crown, Land Registry records and guarantees the ownership of registered land, and of charges over registered land, in England and Wales. It records dealings (such as sales and mortgages) with registered land. The registration of titles accounts for the bulk of Land Registry's work, employing around 98% of the staff. The Land Registry also maintains a land charges register and a register of agricultural charges. The Land Registry became an Executive Agency in 1990 (whilst remaining a government Department with the Lord Chancellor as its Minister) and a Trading Fund in 1993.
Under the Land Registration Acts, the Lord Chancellor has the power to make statutory instruments in connection with land registration, to appoint the Chief Land Registrar, and to nominate certain members of the Rule Committee, which advises and assists in making land registration rules and fee orders. The Lord Chancellor has a further separate power, under the Commonhold and Leasehold Reform Act 2002, to make rules about registration of Commonhold Land. Separately, the Lord Chancellor is also empowered, with the concurrence of the Treasury, to make rules for carrying into effect the Land Charges Act 1972 and in connection with the register of agricultural charges.
Role of the Lord Chancellor
During the period of the Northern Ireland Parliament (1922-1972) the Lord Chancellor's role was limited to ministerial accountability to the United Kingdom Parliament for the Supreme Court of Judicature in Northern Ireland and making recommendations in respect of senior judicial appointments. After the introduction of Direct Rule the Lord Chancellor became responsible for making or advising on all judicial appointments in Northern Ireland. He had however no role in relation to the administration of the courts. The operation of the Supreme Court was a matter for the Lord Chief Justice while administration of the lower courts lay with the Secretary of State for Northern Ireland.
The Judicature (Northern Ireland) Act 1978 is the vehicle by which the current arrangements for judicial appointments, court structures and for the administration of the courts were rationalised and overall responsibility for those matters conferred on the Lord Chancellor. The Lord Chancellor's key responsibilities in Northern Ireland include:
making or recommending various judicial appointments;
dealing with complaints against and removal of members of the judiciary;
deciding on the number of judiciary at the several tiers;
the administration of the Supreme Court (the Court of Appeal, the High Court and the Crown Court), the county courts, the magistrates' courts, the coroners courts and the office of the Social Security and Child Support Commissioners including the power to fix fees, set jurisdictional limits, give directions as to sittings and the allocation of judiciary and the making or concurrence in the making of court rules;
the enforcement of judgments through the Enforcement of Judgments Office.
These functions are discharged through the Northern Ireland Court Service (NICtS), which was established as a unified and distinct civil service under the 1978 Act. The Lord Chancellor does not have any responsibility in Northern Ireland for substantive civil law such as he has in England and Wales.
In 1982 the Lord Chancellor acquired responsibility for matters concerning legal aid policy, legislation and funding and the registration of maintenance orders which had previously been the responsibility of the Secretary of State for Northern Ireland. Also in March 1999 the Lord Chancellor became responsible for advising The Queen on the appointment of Queen's Counsel in Northern Ireland in the exercise of Her royal prerogative. Previously the royal prerogative had been exercised by the Secretary of State for Northern Ireland. The future of the rank of Queen's Counsel in England and Wales and in Northern Ireland is presently the subject of a separate consultation paper (CP 08/03 July 2003).
A list of provisions relating to the Lord Chancellor in specific legislation on Northern Ireland (which does not cover those responsibilities which are exercised in Northern Ireland by virtue of being UK wide) is at Annex F.
Recent developments
The Government has stated on a number of occasions its commitment to devolving policing and justice to Northern Ireland on a robust and workable basis. The report of the Criminal Justice Review established by Government under the Belfast Agreement was published in March 2000. A number of the Review's recommendations are given legislative effect in the Justice (Northern Ireland) Act 2002. That Act contains a number of important provisions in relation to judicial appointments (including the establishment of a Judicial Appointment Commission in Northern Ireland) and removals, the courts and the NICtS, all of which are responsibilities of the Lord Chancellor in Northern Ireland. Many of the Act's provisions are, however, not yet commenced as they are linked to a transfer of responsibility for judicial appointments and the administration of the courts from the Lord Chancellor to the devolved administration. The Government is committed to bringing forward a Judicial Appointments Commission in Northern Ireland in advance of devolution of those functions to the Northern Ireland Assembly. The immediate issue is to adapt the existing role and responsibilities of the Lord Chancellor in Northern Ireland to permit that to happen. This will be the subject of separate legislation for Northern Ireland.
The Lord Chancellor has acquired over time a number of other functions which do not sit obviously with the main work of his Departments. It is in relation to these functions and associated issues that the Government is seeking the views of consultees. It is our intention to contact those private bodies in respect of which we know the Lord Chancellor has a function. We recognise, however, that others may wish to comment on the general approach, and that there may be organisations in respect of whom the Lord Chancellor retains some functions but whom for one reason or another we have not yet contacted. We particularly welcome approaches from such bodies to the contact point given in the section How to Respond as soon as possible.
Historically, the ecclesiastical patronage of the Lord Chancellor is part of the patronage of the Crown, albeit exercised by him for many centuries. The Lord Chancellor is patron of, or has a shared patronage interest in, approximately 442 parish livings in England and 12 Cathedral Canonries (see Annex G). The Lord Chancellor is sole patron of 157 livings and shares the patronage of the 285 remainder in turns, either alternately or sequentially with other patrons. These benefices represent about 5.5% of the total number of benefices. (The Sovereign exercises the rights of patronage personally for a further 210 benefices, acting on the advice of the Prime Minister in his capacity as First Lord of the Treasury). These are only part of a mixed pattern of patronage for parishes. Patrons include, among others; Bishops and private individuals, ecclesiastical trusts and church societies, and Oxbridge colleges and schools.
History
The Lord Chancellor has exercised the patronage of some of these livings since the fourteenth century, when King Edward III gave him the right to exercise the patronage of all Crown livings worth less than twenty marks a year. When the Crown assumed the patronage of a large number of additional livings at the time of the dissolution of the monasteries in the 1530s, Henry VIII similarly gave the Lord Chancellor the right to choose incumbents for the less valuable livings - in this case, those listed as having an annual value of less than £20. When the Duchy of Cornwall is vacant or held by a minor, the Lord Chancellor will also present to the less valuable livings of which the Duchy is patron. In recent years, the patronage of only two benefices has been bequeathed to the Lord Chancellor (not apparently to the Crown for exercise by the Lord Chancellor).
Under the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974, if the Lord Chancellor is a Roman Catholic, provision may be made by Order in Council for his functions in relation to church patronage to be exercised by another Minister of the Crown.
The Lord Chancellor is required to exercise his ecclesiastical patronage on behalf of the Crown in three main areas. These are principally to:
appoint Anglican priests to those livings and cathedral canonries that fall vacant during his turn to present;
give his views and consent on any matters regarding pastoral reorganisation affecting his livings and to any major changes to parsonage houses in those livings;
exercise patronage, under the Mental Health Act 1983, when a patron is of unsound mind.
The choice of appointee both by the Sovereign (latterly on the advice of the Prime Minister) and by the Lord Chancellor is administered through a single office based in No. 10 Downing Street. Since 1964 this office has been headed by the Prime Minister's Appointments Secretary, who is also the Lord Chancellor's Ecclesiastical Secretary, and is responsible for a number of non-ecclesiastical appointments. All of the Crown's patronage of parochial benefices is administered by the Assistant Ecclesiastical Secretary.
The Assistant Ecclesiastical Secretary consults interested parties, for example, the parish and the Bishop about the needs of the parish, assessing potential candidates and corresponding with the respective parish representatives and diocesan bishops. This usually involves parish representatives interviewing prospective candidate(s). When all parties are agreed about an appointment, a submission is sent (in the case of the Lord Chancellor's livings) to the Lord Chancellor for his agreement and signature. The presentation to the living is made by Letters Patent under the Great Seal.
'Crown Benefices', including those for which the Lord Chancellor exercises the patronage, are exempt from most of the requirements of the Patronage (Benefices) Measure 1986, including the right of veto over individual appointments (subject to review by the Archbishop) for the diocesan bishop and parish representatives. The Measure was introduced partly to ensure a proper consultation process between interested parties about parish appointments. However, both the Crown and Lord Chancellor were undertaking appropriate and proper consultation long before the introduction of this Measure. In practice, the Lord Chancellor works collaboratively with the interested parties and within the spirit of the legislation.
Appointments of twelve canonries in the Lord Chancellor's gift are handled in a broadly similar way. This again involves extensive consultations with the Dean and Chapter of the cathedrals concerned others, although the precise process of appointment may differ from place to place and from time to time, and will often involve the Prime Minister's Appointments Secretary.
Options for future handling
The Lord Chancellor's current role in Ecclesiastical Patronage could be transferred to another Minister of the Crown. Given his role as adviser to the Crown on a range of matters, including in relation to the Church and the Great Seal, the Secretary of State for Constitutional Affairs would be the most natural recipient of these responsibilities. While not central to the prime responsibility for courts and tribunals, legal services and the constitution, such patronage duties are not onerous.
The Lord Chancellor's ecclesiastical patronage, which is exercised on behalf of the Crown, could revert to the Crown and be exercised in the same manner as the other Crown livings and other Crown cathedral canonries (i.e. with the Prime Minister advising The Queen). Its administration would remain the same. This has the virtue of causing least disruption to present arrangements. Unless this change were accompanied by reforms to the formal process involved, it could more than double the number of parochial appointments which The Queen and the Prime Minister would personally have to approve each year. This number, however, is relatively small. Given the source of this patronage in the Crown, and the Prime Minister's role in advising The Queen on a range of appointments, this might not be thought inappropriate. In either of the above suggestions, there would need to be a provision that responsibility could be transferred in the event that a particular office holder was unable to exercise them for reasons of conviction or belief.
Finally, the Lord Chancellor's ecclesiastical patronage could be transferred to the Church. As the part played by Ministers in the process is already largely formal, there is a question as to how far the state appointment of a rector or vicar for various livings across England remains in the best interests of the Church or the country. Against that, it is not necessarily inappropriate in an Established Church that a wide variety of patronage should exist.
If this function did move to the Church, possible recipients could be:
The diocesan bishop.
As the chief pastor in a diocese, it might be natural that the
patronage should pass to him. Once the benefices ceased to be
in the gift of the Crown the normal consent provisions of the
Patronage (Benefices) Measure 1986 would apply. As a result, the
lay representatives of the parish would acquire the same veto
right over appointments as in other non-Crown benefices. This
patronage could be administered by diocesan bishops without the
need for an increase in staff.
The diocesan board of patronage.
Such boards were established in every diocese under the Benefices
(Diocesan Boards of Patronage) Measure 1932. These Boards generally
consist of the diocesan bishop or another bishop nominated by
him, other clergy and elected lay people. Such boards currently
have the sole or joint patronage of 526 benefices (6.6% of the
total, though the Crown or the Lord Chancellor has a share in
the patronage of some of these benefices).
The Archbishops of Canterbury and York for their respective provinces
One or more patronage trusts.
These would probably have to be newly established since it would be difficult simply to use one or more of the existing patronage trusts (which in general were established to promote particular types of churchmanship).
Different options could apply in the case of the twelve Canonries.
| QUESTIONS: Ecclesiastical Patronage
In each case please give your reasons. (Views on this subject are invited from all interested parties, but it would be helpful in your response if you could state whether you have any position in relation to the Church, for example as a member of a PCC.) |
In addition to ecclesiastical patronage, the Lord Chancellor performs a number of other functions in relation to the Church of England.
The Lord Chancellor is ex officio one of the Church Commissioners. The Church Commissioners manage investments for funding pensions, stipends and other purposes, and exercise administrative functions relating to pastoral reorganisation and redundant churches. It falls to the Lord Chancellor to lay their Annual Report and Accounts before Parliament. Due to the current make-up of the Church Commissioners, there is no incongruity in the Secretary of State for Constitutional Affairs, with responsibilities in relation to the church, continuing to carry out these duties. We are in discussion with those concerned.
The Lord Chancellor must be consulted on certain ecclesiastical judicial appointments. These include lay persons for the Arches Courts of Canterbury and the Chancery Court of York; diocesan chancellors; the Dean of the Arches and Auditor; and members of the Court of Ecclesiastical Causes Reserved. As it is proposed that the Lord Chancellors' responsibilities in relation to the more general appointment of judges pass to a Judicial Appointments Commission, we will need to consider these responsibilities in light of responses to that consultation.
The General Synod of the Church of England has the power to legislate by Measures, which have the same force and effect as Acts of Parliament once they have been approved by Parliament and received the Royal Assent. When any Measure is submitted to Parliament, it is considered by the Ecclesiastical Committee. As Speaker, the Lord Chancellor nominates fifteen members of the House of Lords to sit on the Ecclesiastical Committee of Parliament. This function could be transferred to the new Speaker of the House of Lords.
In addition, as the appropriate Minister, the Lord Chancellor has certain functions in relation to ecclesiastical legislation in the Channel Islands and the Isle of Man. Again, these responsibilities will be transferred to the Secretary of State for Constitutional Affairs.
Origins of the Visitor
Visitation is a form of supervision over the domestic affairs of an institution. The Visitor of an institution was originally appointed by the founder of an ecclesiastical or eleemosynary institution to ensure that the governance and administration of the institution complied with his or her intentions. Eleemosynary corporations, that is charitable institutions set up for the perpetual distribution of the founder's alms and bounty (generally universities, colleges or hospitals), are still subject to the jurisdiction of the Visitor. The Visitor for these institutions is the founder, or a person appointed by him or the Crown. In the case of universities and other institutions founded by Royal Charter, the Crown is the Visitor, unless the Charter appoints someone else. If for any reason the appointment falls vacant, the Visitorship reverts to the Crown.
By convention, where the Crown is the Visitor, the Visitatorial jurisdiction will be exercised by the Lord Chancellor on behalf of The Queen (unless there are special reasons which make it undesirable for the Lord Chancellor to act). The Lord Chancellor is also the appointed Visitor to a number of institutions. Others who exercise Visitatorial jurisdiction include the Lord President of the Council, the Archbishop of Canterbury or other Bishops, as well as named peers, or eminent individuals acting in a personal capacity. There is no requirement on the Visitor to be legally qualified and many are not.
There is a ceremonial element to the role of Visitor, and the Visitor may be called upon to give advice where an institution expresses doubt as to its powers under its charter and statutes. However, the most important function of the Visitor (and one which has arisen more frequently in recent years) is within academic institutions, where the Lord Chancellor has to determine disputes arising between the academic institution and its members. In particular, he has to act as the final adjudicator in relation to any student grievance.
The current role and powers of the Academic Visitor
53. A list of the relevant universities where the Lord Chancellor currently carries Visitatorial responsibilities is set out in Annex H.
Any disputes relating to the correct interpretation and fair administration of the internal laws of universities fall within the exclusive jurisdiction of the Visitor of that university, and any member of the university is entitled to invoke the Visitor's jurisdiction by petitioning the Visitor. Disputes falling within the Visitor's jurisdiction vary widely. Most concern student grievances. They include disputes in relation to the application of a university's disciplinary procedures (where, for example, a student has been suspended) or to its grievance procedures. Commonly, disputes will arise in relation to the degree awarded (or not awarded) to a student.
A student may also petition the Visitor complaining that they are not receiving the civil rights to which they are entitled under the university's rules (for example, that they have not received sufficient supervision). The Visitor does not have jurisdiction where the dispute between the university and a member turns on the terms of a contract and does not involve the enforcement of or adjudication upon the internal laws of the university (Thomas v University of Bradford (1987) AC 795). However, the fact that a claim is expressed in terms of contract or tort (or any other Private Law right) does not take it outside the jurisdiction of the Visitor, provided that the obligation in question arises under the university's internal laws.
There are some limitations on the Visitor's jurisdiction. The Visitor has no jurisdiction where the remedy claimed arises under statute (e.g. race or sex discrimination). The Visitor's jurisdiction over disputes between the university and members of the academic staff has been significantly reduced by section 206 of the Education Reform Act 1988, which removes the Visitor's jurisdiction over disputes in relation to the appointment, employment or termination of academic staff.
A Visitor has power to redress any grievance that has resulted from the misapplication of the internal laws of the university. He may quash any decision taken by the university, and where appropriate he has the power to award damages. The Visitor's decision is final, and there is no appeal from it. However, the courts exercise a limited judicial control. Decisions by the Visitor may be judicially reviewed on the grounds that he has acted outside his jurisdiction. A Visitor may be subject to a mandatory order, or a prohibiting order. The Visitor is not however subject to a quashing order.
It is usually possible for petitions to be determined on the basis of written submissions made by the parties. However, occasionally an oral hearing may be required. In the past this has led the department to recommend that the visitatorial jurisdiction should be delegated to someone other than the Lord Chancellor. On occasion in the past the Lord Chancellor has advised The Queen to delegate Her visitatorial jurisdiction in a given case to a retired senior judicial figure.
Proposals to reform the role of the Academic Visitor
The Government has been considering how the current arrangements for addressing student complaints could be modernised to give a system of redress which is fast, independent, accountable and common to all students. The Government plans to legislate shortly to:
limit the jurisdiction of Visitors over student complaints in the higher education sector;
allow the Secretary of State for Education and Skills to approve a scheme for an Office of Independent Adjudicator who will review complaints made by students in institutions in the higher education sector;
require institutions for higher education and the colleges of Oxford and Cambridge Universities to subscribe to and use a scheme approved by the Secretary of State for Education and Skills.
In the meantime, a voluntary scheme is being established (it is intended that this will be the scheme which is ultimately approved by the Secretary of State for Education and Skills under the proposed legislation). A shadow Board of the Office of the Independent Adjudicator (OIA) has been set up under the chairmanship of Professor Norman Gowar. Board members include representatives from the Universities UK, the Standing Conference of Principals, Higher Education Wales, the Committee of University Chairmen, the Association of Heads of University Administrators and the National Union of Students. The OIA should be in place to receive and review complaints on a voluntary basis from January 2004.
The Lord Chancellor has agreed to participate in the voluntary scheme, by requiring any students who wish to petition the Visitor to seek an adjudication from the Independent Adjudicator before doing so. The student will however retain the right to seek a final determination from the Lord Chancellor until the Visitor's jurisdiction over student complaints is removed in the proposed legislation.
Options for reform of the Lord Chancellor's role as Visitor
If, as anticipated, the proposed legislation in practical terms removes the jurisdiction of the Visitor in relation to student complaints, the demands on the Lord Chancellor as Visitor will be significantly reduced. There may however still be occasions in which a member of a University is entitled to petition the Visitor (for example, the Visitor retains a residual jurisdiction in relation to academic disputes). The Visitor will also retain his ceremonial and other functions. Accordingly, provision needs to be made to handle this work once the office of the Lord Chancellor has been abolished.
The options are:
The Secretary of State for Constitutional Affairs could technically continue to carry out these reduced functions with the support of officials.
Her Majesty could be invited to delegate the exercise of her jurisdiction elsewhere. This would require either the identification (or creation) of a particular office, the holder(s) of which would undertake the same role as the Lord Chancellor in relation to all future petitions to the Visitor.
Advice could be given to The Queen on a case-by-case basis on who is best placed to exercise Her Visitatorial jurisdiction. In that case, advice on such nominations could continue to be given by the Secretary of State for Constitutional Affairs as part of his role in giving advice to the Crown on 'constitutional' issues more generally.
Where the Lord Chancellor is Visitor by virtue of his office, specific provision will need to be made. This could be done by legislation, or by the institutions in question amending their charters. We are in discussion with the relevant institutions.
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Royal Peculiars are places of worship which are outside the normal structure of ecclesiastical jurisdiction. The three principal Royal Peculiars are Westminster Abbey, St George's Chapel, Windsor and the Chapels Royal. In the case of Westminster Abbey and the Chapels Royal, Her Majesty The Queen is the Visitor and (as described above) that responsibility by convention devolves onto the Lord Chancellor. The Lord Chancellor is ex officio Visitor for St George's Chapel, Windsor, but in all three cases the Peculiars are closely associated with the Monarchy and the Royal Household, and the Lord Chancellor may be requested by the Monarch to provide advice in relation to them.
Throughout the 1990s, there was unease in some quarters that the Royal Peculiars were exempt from the degree of scrutiny and accountability that was extended to cathedrals by the Care of Cathedrals Measure 1990 and the Cathedrals Measure 1999. This led to the Deans of Westminster, Windsor and the Chapels Royal to instigate a review of the organisation, management and accountability of the Royal Peculiars.
The Review Group presented its report and recommendations to the then Lord Chancellor in 2001, since which time, consultation has taken place and it is hoped to provide advice on the recommendations to Her Majesty The Queen by the end of the year. The abolition of the office of Lord Chancellor, as least in its present form, will have to inform that advice. The destination of the present roles of the Lord Chancellor in relation to Royal Peculiars, however, needs to be considered as an integral part of that exercise, which is already well advanced.
| QUESTIONS: Royal Peculiars
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As described in paragraph 50 above, the role of Visitor applies to eleemosynary institutions to ensure that the governance and administration of the institution complies with the intentions of the founder. This means that where issues relating to the governance of charitable institutions arise, the jurisdiction of the Visitor may be invoked. Thus the Lord Chancellor, acting on behalf of The Queen, from time to time receives a request to make a determination in relation to such bodies. In addition, he is expressly named as Visitor of certain other institutions in his own right. One such is the Royal Institution, where the statutes limit his role to the construction of statutes. We are in touch with institutions where we know that the Lord Chancellor has a role in order to amend references to him in their governing instruments.
Visitorships are not the Lord Chancellor's only responsibilities in relation to charities. For example, under the Law of Property (Amendment) Act 1926 he certifies the non-profitmaking nature of certain corporations which seek trust corporation status. The Lord Chancellor also has a specific role in respect of particular charitable institutions. For example he makes appointments to the governing bodies of the Nightingale Fund, and the London School of Hygiene and Tropical Medicine. He also makes appointments to the governing bodies of certain schools.
The Lord Chancellor elects a member of the governing body of three of the schools covered by the Public Schools Act 1868: Charterhouse, Harrow and Rugby. This provision is contained in the statutes of the schools which, as required by the 1868 Act, are confirmed by Order-in-Council. (The Lord Chief Justice has a similar role in relation to Charterhouse, Eton and Shrewsbury.)
Until 1995 the Lord Chancellor was also entitled to nominate a Member of the Board of Governors of Alleyn's College, Dulwich. This entitlement was, however, removed in 1995, with the Lord Chancellor's agreement, when the constitutions of the relevant charities were modernised. There seems to be no reason why the Lord Chancellor's involvement in electing a Governor of these other schools should not be similarly brought to an end. We are in contact with the schools concerned about how best to achieve this.
Separately, the Lord Chancellor advises Her Majesty on the appointment of Governors of Wellington College. Under its Royal Charters, every Governor of the College is elected with the approbation of Her Majesty. This role was transferred from the Home Secretary in 2001. It could fit with the other responsibilities as an adviser to the Crown, and continue with the Secretary of State for Constitutional Affairs, or the arrangement could be reviewed by the Palace and the College and possibly transferred to another Minister.
In addition, the Lord Chancellor makes certain other non-judicial appointments. One example is the appointment of one of the Wimbledon & Putney Commons Conservators under the Wimbledon and Putney Commons Act 1871, which was intended to prevent the enclosure of, and building upon, certain areas of land. Under the Act an election takes place for five Conservators by local people, and three are appointed, one each by the Lord Chancellor, the Secretary of State for Defence, and the Secretary of State for the Environment, Food and Rural Affairs. Such election and appointments are required every three years. We are contacting the Conservators about the consequence for them of the abolition of the office of the Lord Chancellor.
Where the Lord Chancellor has been called upon to exercise such an appointment function in recent times, we are contacting the charities directly to consider with them how to deal with the consequences of abolishing the office of Lord Chancellor in its present form.
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Because of his office, the Lord Chancellor also holds a number of honorary positions in non-Governmental organisations, either by custom or by the governing instruments of the organisation. As a general rule the Government will leave it to the organisation concerned to consider the consequences of the abolition of the office of the Lord Chancellor, at least in its present form. However, we are ready to discuss alternative arrangements with any organisation with formal or informal affiliations with the Lord Chancellor.
As in the case of the King Edward's Hospital Fund for London Act 1907, some of the Lord Chancellor's responsibilities derive from Private Acts. Other functions of the Lord Chancellor are derived from Local Acts. Local, Personal or Private Acts of Parliament greatly outnumber the Public General Acts, but there are only very limited reference tools to assist searches. Accordingly, we propose to take a power for the Secretary of State for Constitutional Affairs to address any residual functions of the Lord Chancellor, which might arise after the office has been abolished. We envisage that this will permit him to exercise the power, or to delegate it to another appropriate office holder (with their agreement), by means of Statutory Instrument.
77. The role of 'Keeper of the Royal Conscience' relates to the Lord Chancellor's equitable jurisdiction in the Court of Chancery. The separate role for the Lord Chancellor in this respect disappeared when they were combined with the common law acts in the late 19th century. The Lord Chancellor is therefore a senior representative of the Sovereign, but does not hold any separately identifiable function as Keeper of the Royal Conscience.
Ecclesiastical Patronage
How should this patronage best be exercised once there is no longer
a Minister of the Crown with the office of Lord Chancellor?
Do you prefer:
The Secretary of State for Constitutional Affairs, or another Minister of the Crown, to retain responsibility for Ecclesiastical Patronage
The responsibility for Ecclesiastical Patronage to be dealt with in the same manner as other Crown livings (i.e. with the Prime Minister advising The Queen);
Transferring the Lord Chancellor's patronage powers, at least in respect of parochial appointments, to the Church? If so, who in the church would be the best recipient in your view?
In each case please give your reasons.
(Views on this subject are invited from all interested parties, but it would be helpful in your response if you could state whether you have any position in relation to the Church, for example as a member of a PCC.)
Visitorship
How should the Visitatorial roles of the Lord Chancellor best be exercised in the future? And by whom? What are your reasons?
Royal Peculiars
There is a distinction to be drawn between providing advice to Her Majesty in relation to Royal Peculiars and carrying out visitatorial functions in respect of them. How should the two roles best be carried out in the future? What are your reasons?
Charities and Schools
Where the Lord Chancellor has a function in relation to specific schools, charities or other bodies not connected to his Departmental or Visitatorial responsibilities, do you see any value in continuing such involvement? What are your reasons?
Name:
Organisation:
Address:
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
Please send (preferably by e-mail) your completed response by 7 November 2003 to:
Jessica Litten
Constitutional Reform
Clients and Policy Group
Department for Constitutional Affairs
5th Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 020 7210 8599
Fax: 0870 739 4266
Email: LC Functions
Judiciary
The Lord Chief Justice of England and Wales
The Master of the Rolls
The President of the Family Division of the High Court
The Vice Chancellor, Chancery Division
Deputy Chief Justice
Senior Presiding Judge
Senior Law Lord
Law Lords
High Court Judges and Court of Appeal Judges
Her Majesty's Council of Circuit Judges
Senior District Judge, Magistrates Courts
Association of District Judges
Magistrates' Association
Tribunals Presidents
Parliamentary
Clerk to the Select Committee on the Speakership of the House Clerk of
the Parliaments
Clerk of the Commons
Clerk to the Select Committee on the LCD
Ecclesiastical Committee
The Legal Professions
Administrative Law Bar Association
Association of Justices' Chief Executives (AJCE)
Association of Licensed Conveyancers
Association of Magisterial Officers
Association of Personal Injury Lawyers
Bar Association for Commerce, Finance and Industry
Bar Association for Local Government and the Public Service
Bar Council
Bar Pro Bono Unit
British Legal Association
Chancery Bar Association
City of London Law Society
Commercial Bar Association
Council for Licensed Conveyancers
Criminal Bar Association
Disability Law Service
Ecclesiastical Law Association
Employment Law Bar Association
Family Law Bar Association
Federation of Insurance Lawyers
Forum of Insurance Lawyers
General Council of the Bar
Honourable Society of Grays Inn
Honourable Society of the Inner Temple
Honourable Society of Lincoln's Inn
Honourable Society of the Middle Temple
Housing Law Practitioners Association
Institute of Advanced Legal Studies
Institute of Legal Executives
Institute of Trade Mark Attorneys
Justices' Clerks Society
Law Centres Federation
Law Society of England and Wales
Law Society for Commerce and Industry Group
Law Society Sole Practitioners Group
Legal Aid Practitioners Group
London Common Law and Commercial Bar Association
London Solicitors Litigation Association
Master of the Court of Faculty
Motor Accident Solicitors Society
Official Referees Bar Association
Property Litigation Association
Society of Black Lawyers
Society of Trust and Estate Practitioners
Solicitors Association of Higher Court Advocates
Solicitors Family Law Association
Solicitors for the Elderly
Solicitors in Local Government
Solicitors Pro Bono Group
Government Departments, Public Bodies, Agencies and Others
Attorney General
Cabinet Office
Cabinet Secretary's Office
Charity Commission
Civil Justice Council
Clerk of the Duchy of Lancaster
Commission for Judicial Appointments
Council on Tribunals
Crown Dependencies
Department for Culture Media and Sport
Department for Education and Skills
Department for Environment, Food and Rural Affairs
Department for International Development
Department for Transport
Department for Work and Pensions
Department of Health
Department of Trade and Industry
Earl Marshal
Equal Opportunities Committee
European Commission
European Parliament UK Office
Foreign and Commonwealth Office
Garter King of Arms
Government Legal Service Secretariat
Government Office for London
HM Comptroller (Solicitor General)
HM Customs and Excise
HM Land Registry
HM Treasury
Home Office
Inland Revenue
Judicial Studies Board
Lands Tribunal
Law Commission
Legal Services Commission
Legal Services Consultative Panel
Ministry of Defence
National Assembly for Wales
Northern Ireland Office
Office of the Legal Services Ombudsman
Office of the Deputy Prime Minister
Office of Manpower Economics
Official Solicitor's Office
Prime Minister's Office
Parliamentary Counsel Office
Principal Probate Registry
Privy Council Office
Public Guardianship Office
Regulatory Impact Unit, Cabinet Office
Small Business Service
Solicitor General
The National Archive
Treasury Solicitor's Department
Wales Office
Main Representative Groups and Interested Parties
Advice Services Alliance
Advice UK
Association of British Insurers
Association of Governing Bodies of Independent Schools
Association of Law Costs Draftsmen
Association of Lord Lieutenants
Aston University
Bath University
Bradford University
British-American Parliamentary Group
Charterhouse
Chartered Institute of Patent Agents
Commonwealth Parliamentary Association - British Group
Consumers Association
Disability Rights Commission
Downing College, Cambridge
Exeter University
Gonville & Caius College, Cambridge
Hansard Society
Harrow School
Headmasters and Headmistress' Conference
Independent Schools Council
Inter Parliamentary Union - British Group
Keble College
King Edward's Hospital Fund for London
Lancaster University
Legal Action Group
Liberty
Litigants in Person Society
Local Government Association
London School of Economics
London School of Hygiene and Tropical Medicine
Magistrates Golfing Society
National Association of Citizen's Advice Bureaux
National Consumer Council
National Council for Civil Liberties
Newcastle University
Open University
Oriel College, Oxford
Pembroke College, Cambridge
Queens' College, Cambridge
Rugby School
Salford University
St Anthony's College, Oxford
St. Catherine's College, Cambridge
Society of the Propogation of the Gospel
Surrey University
The Corporation of Sons of the Clergy
The Nightingale Fund Council
The Royal Institution of Great Britain
The Royal Society
Trades Union Congress
Trinity College, Cambridge
Trinity Hall, Cambridge
University College, Oxford
Warwick University
Wellington College
Wimbledon & Putney Commons Conservators
York University
Ecclesiastical
Rectors and vicars of parishes where the Lord Chancellor is patron
Church Commissioners
Churches Main Committee
Corporation of Church House
Archbishop of Canterbury
Archbishop of York
All Diocesan Bishops
Secretary General of the Archbishops' Council and the General Synod
Dean of Bristol Cathedral
Dean of Gloucester Cathedral
Dean of Norwich Cathedral
Dean of Rochester Cathedral
Dean of Westminster Abbey
Dean of St. Georges Abbey, Windsor
Dean of the Chapels Royal
Public Notaries Office
The Lord Justice Clerk
The Lord President
The Judges of the Court of Session
The Sheriffs Association
The Sheriffs Principal
The Legal Professions
Faculty of Advocates
Law Society of Scotland
Scottish Association of Law Centres
Scottish Committee of the Council of Tribunals
Procurators Fiscal Society
Scottish Law Agents Society
Scottish Law Commission
Scottish Young Lawyers Association
Society of Solicitor Advocates
The Society of Writers to Her Majesty's Signet
Government Departments, Public Bodies, Agencies and Others
Advocate General for Scotland
Crown Office
Department for Communities
Department for Education and Young People
Department of Enterprise, Transport, Lifelong Learning
Department for Environment and Rural Development
Department of Finance and Public Services
Department of Health and Community Care
Department for Justice
Department for Parliamentary Business
Department for Tourism, Culture and Sport
Department of Transport
European Commission Office (NI)
First Minister
Judicial Appointments Board for Scotland
Judicial Studies Committee for Scotland
Justice Committees of the Scottish Parliament
Lord Advocate
Lord Lyon, King of Arms
Presiding Officer of the Scottish Parliament
Registers of Scotland
Scotland Office
Scottish Court Service
Scottish Council for International Arbitration
Scottish Criminal Case Review Commission
Scottish Executive
Scottish Legal Aid Board
Solicitor-General for Scotland
Main Representative Groups
Church and Nation Committee - Church of Scotland
Scottish Human Rights Centre
Scottish Legal Action Group
Judiciary
The Lord Chief Justice of Northern Ireland
High Court Judges and Court of Appeal Judges
Association of District Judiciary (NI)
Council of Her Majesty's County Court Judges (NI)
Resident Magistrates Association (NI)
Society of Masters (NI)
President of Appeals Tribunals
President of the Industrial Tribunals and the Fair Employment Tribunals
President of Lands Tribunals
President of the Special Educational Needs Tribunal for Northern Ireland
The Legal Professions
The Bar Council
Belfast Solicitors Association
General Council of the Bar in Northern Ireland
Institute of Professional and Legal Studies (NI)
Law Society of Northern Ireland
Government Departments, Public Bodies and Agencies
Commissioner for Judicial Appointments for Northern Ireland
Crown Solicitor for Northern Ireland
Department of Agriculture and Rural Development
Department of Education
Department of Employment and Learning
Department of Enterprise, Trade and Investment
Department of the Environment
Department of Finance and Personnel
Department of Health, Social Services and Public Safety
Department of Public Prosecutions
Department for Regional Development
Department for Social Development
Equality Commission for Northern Ireland
Human Rights Commission for Northern Ireland
Judicial Studies Board (NI)
Land Registers of Northern Ireland
Law Reform Advisory Committee
Lay Observer for Northern Ireland
Legal Aid Advisory Committee
Legal Aid Committee
Northern Ireland Council for Voluntary Action
Northern Ireland Court Service
Northern Ireland Government Departments
Northern Ireland Local Government Association
Northern Ireland Office
NI Ombudsman
Northern Ireland Political Parties
Office of Law Reform, Northern Ireland
Office of the First Minister and Deputy First Minister
Official Solicitor's Office (NI)
Main Representative Groups
Committee on the Administration of Justice
General Consumer Council (NI)
Northern Ireland Citizens Advice Bureau
Northern Ireland Committee of the Irish Congress of Trade Unions
Northern Ireland Law Centre
If you have any complaints or comments about the consultation process, you should contact the Department for Constitutional Affairs consultation co-ordinator, Laurence Fiddler, on 020 7210 8516 or email him at Laurence Fiddler. Alternatively, you may wish to write to the address below:
Laurence Fiddler
Consultation Co-ordinator,
Room 8.23
Department for Constitutional Affairs
Selborne House
54-60 Victoria Street
London SW1E 6QW
The criteria in the Code of Practice on Written Consultation issued by the Cabinet Office is as follows:
The departmental responsibilities of the Lord Chancellor have grown considerably over time. Apart from certain responsibilities in relation to children and families, including responsibility for the Children and Family Court Advisory and Support Service (CAFCASS), which are transferred to the Secretary of State for Education and Skills, the Department for Constitutional Affairs (DCA) retains all the functions of the Lord Chancellor's Department prior to 12 June. These responsibilities include judicial appointments (which are to be effected by the proposed establishment of a Judicial Appointments Commission); the administration of courts and tribunals; the provision of legal aid and legal services; and the promotion of reform and revision of English civil law, as well as responsibilities relating to human and other rights and matters affecting the constitution. With the exception of responsibilities more appropriate to the Judicial Appointments Commission, and subject to the special conditions applying in Northern Ireland, the Departmental responsibilities of the Lord Chancellor will be progressively transferred to the Secretary of State for Constitutional Affairs.
Courts and Tribunals
Through the Court Service the Lord Chancellor is directly responsible
for the administration of the higher civil and criminal courts in England
and Wales (apart from the Judicial Committee of the Privy Council and
the Appellate Committee of the House of Lords) and oversees the locally
based management of the magistrates' courts. In April 2005 the magistrates'
courts will be integrated into unified court service with a single nationally
funded administrative structure.
As the Minister primarily responsible for the courts system, the Lord Chancellor works closely with the Home Secretary and the Attorney General to ensure the effective working of the Criminal Justice System (CJS), reducing crime and the fear of crime, bringing more offenders to justice and promoting public confidence.
In addition, the Lord Chancellor works jointly with the Home Secretary to deliver the Government's strategy and policy on asylum and immigration. In particular, the Lord Chancellor seeks to provide an independent, swift and effective appeals system.
The Tribunals Service
The Court Service already administers a number of tribunals (listed below).
The DCA is also taking a wider tribunal reform programme to create a separate
agency within DCA, to be known as the Tribunals Service. This will, over
time, administer most central Government tribunals.
Legal aid and Legal Services
The Lord Chancellor is responsible for the Legal Services Commission which,
through the Community Legal Service and the Criminal Defence Service,
provides access to information and other help for citizens seeking to
exercise or defend legal rights, and (subject to certain conditions) publicly
funded legal assistance in England and Wales.
There are currently four legal professional bodies authorised by the Lord Chancellor under statutory provisions (Section 27 and schedule 4 to the Courts and Legal Services Act 1990) to grant rights of audience in the courts or rights to conduct litigation to their members. Those bodies are: the Law Society of England and Wales; the General Council of the Bar of England and Wales; the Institute of Legal Executives; and the Chartered Institute of Patent Agents. Under the same statutory provisions, the Lord Chancellor also has the duty of authorising new or additional bodies to grant such rights. Any changes to the rules of any of these authorised bodies which impact on the grant or exercise of those rights by members of those bodies also require the approval of the Lord Chancellor before they can have effect.
Civil and Family Law
The Lord Chancellor seeks to improve substantive civil law reform, procedures
in the civil courts, and to promote alternative dispute resolution in
order to make the law fairer, simpler and clearer.
The Lord Chancellor has responsibility for the Law Commission which is an Executive Non-Departmental Public Body (ENDPB) which makes recommendations to Government about Law Reform and promotes reform of the law of tort and damages, contract, trusts, land (including, commonhold, e-conveyancing and land registration), succession, and e-law.
The Lord Chancellor also has responsibilities in relation to matrimonial law, and the affairs of those who cannot look after themselves. The Official Solicitor and Public Trustee ensures the protection of and provision for those with mental health problems and the management of their affairs. He also represents children and adults with disabilities, and manages the estates and trusts of those incapable of doing so for themselves, either through death or infirmity.
The Lord Chancellor is the Central Authority for England and Wales for the operation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This function is performed by the office of the Official Solicitor and Public Trustee.
Constitutional Matters
The Lord Chancellor is, after the Prime Minister, the principal source
of ministerial advice to The Queen. Until recently the Home Secretary
retained a range of duties in relation to the Sovereign, the established
Church and our other constitutional arrangements. In 2001, these responsibilities
were transferred to the Lord Chancellor. The Lord Chancellor also has
responsibilities for the official Roll of the Baronetage, and the Peerage.
The Lord Chancellor is also the Privy Counsellor primarily concerned with
the affairs of the Crown Dependencies (Jersey, Bailiwick of Guernsey and
the Isle of Man). By custom, the Lord Chancellor (before 2001, the Home
Secretary) also administers the Oath of Homage when new Bishops and Archbishops
swear allegiance to The Queen.
The Lord Chancellor is also the Minister with formal responsibility for human rights, fundamental marriage law and the rights and recognition of transsexual people, as well as Freedom of Information and Data Protection. The latter are overseen by the Information Commissioner, which is another ENDPB that reports to Parliament. The Lord Chancellor's responsibilities also include policy on electoral law, referendums and party funding, and reform of the House of Lords.
Current List of DCA Agencies and other offices
This list sets out as at 1st August 2003 the agencies and other principal
other offices and bodies which fall under the aegis of, or are funded
through the Department for Constitutional Affairs (and previously Lord
Chancellor Department).
Tribunals
The Lord Chancellor acts on behalf of The Queen, where the Charters designate the Sovereign, are silent on the Visitor's identity, or the Visitor is appointed under Charter by Order in Council, but there is no current appointee, for the following universities (as at May 2003):
Aston University
Bath University
Bradford University
Exeter University
Lancaster University
Open University
Salford University
Surrey University
Warwick University
York University
Downing College, Cambridge
Gonville & Caius College, Cambridge
Pembroke College, Cambridge
Queens' College, Cambridge
St. Catharine's College, Cambridge
Trinity College, Cambridge
Trinity Hall, Cambridge
The Visitorship is bestowed by Charter on the holder of the office of Lord Chancellor in the following cases:
Newcastle University
Oriel College, Oxford
St Anthony's College, Oxford
University College, Oxford
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