The Lord Chancellor’s Office

The nineteenth-century Lord Chancellor was in two senses ‘a minister without a ministry’.¹ He had no team of civil servants nor accommodation dedicated solely to his executive functions. In the early part of the century he and his small retinue of secretaries and officers arrived in a coach each morning to conduct his business in his own court at the top of the steps at the south end of Westminster Hall. No permanent corpus of departmental records was kept and the papers belonging to an outgoing Chancellor were removed and usually destroyed.²

The Chancellor had officials serving him in his various capacities, but most of those belonging to the court of Chancery were not available to him for non-judicial work and those belonging to the great seal were reduced and remodelled in the 1870s.³ Besides his retinue of body officers, some of whom were also employed on clerical duties⁴ the Chancellor had three secretaries: a secretary of presentations for ecclesiastical patronage; a secretary of commissions for the magistracy; and a principal secretary who was a general factotum.⁵ By the 1860s (p.786) all were quartered in the House of Lords, except a couple of outlying clerks in Quality Court, off Chancery Lane.⁶

At the same time that the Judicature Commissioners were seeking to remodel their structure, there were moves afoot to reduce the autonomy which the courts enjoyed and integrate the legal departments more closely with the rest of the public service. An Act of 1869 laid down the principle that the expenditure on the courts should be met from the consolidated fund; some of the suitors’ funds in Chancery and bankruptcy were transferred to the exchequer and Treasury supervision over monies in court was strengthened.⁷ In 1873, pursuant to the recommendations of the Childers Committee, all new appointees not permanently attached to a judge were ‘deemed to be civil servants’ and that same Committee expressed the need for ‘some Department of the Government directly responsible to Parliament [to have] the power to administer and organise those officers in such a manner as to ensure the greatest amount of efficiency, combined with all practicable economy’.⁸ Selborne persuaded the Committee not to recommend that this ‘Ministry of Justice’ be located in the Home Office, but it was due more to the reluctance of the government to embark on a major and (as involving patronage) controversial legislative initiative than to any convincing constitutional or administrative arguments that the Lord Chancellor became not only the president of the SCJ but also the responsible minister for its finances and organization.⁹

When, as had to be conceded, the legal offices were investigated by the Lisgar Commission, Selborne and Cairns agreed (as did the Commissioners) that the principal secretary should not be converted into a permanent official but should, like the other secretaries, continue to come in and go out with his master.¹⁰ By 1882, however, the labour of implementing the Judicature Acts and the prospect of an ongoing supervision of the Supreme Court had convinced both men that this was no longer viable.¹¹The last fruit of their co-operation in law reform was to combine in the person of Kenneth Muir McKenzie a new permanent secretaryship with the dignified and largely honorific office of clerk of the Crown in Chancery. The other secretaryships were continued and in 1886 Halsbury gave Muir McKenzie a chief clerk.¹²

(p.787) This small department was now entirely concentrated at the House of Lords and for the next 30 years Muir McKenzie was, for all practical purposes, ‘the Lord Chancellor’s Office’. It was characteristic of the man that he chose for his assistant Adolphus Liddell, an unsuccessful barrister with no professional ambition, polished manners, and an amiable disposition.¹³ Muir McKenzie is an elusive figure whose secretive working methods makes his influence difficult to follow.¹⁴ For all his detestation of patronage,¹⁵ he was rumoured to enjoy a considerable backstairs influence on judicial offices and, as befitted a political radical, he was at first a vigorous proponent of reforms in the legal system. Unfortunately for him, the Chancellor for most of that time was Halsbury, conservative in politics and administrative reform alike, and by the time a genuine reformer in Haldane arrived, Muir McKenzie had lost much of his earlier zeal.¹⁶

Haldane was astonished by the working practices and organization of the office, which he described as ‘not far removed from being an interesting little museum’, but he took no immediate action, perhaps waiting for Muir McKenzie to retire.¹⁷ The only resource Muir McKenzie hankered after was a junior minister in the Commons, where LCO measures were inadequately promoted by Treasury ministers or law officers.¹⁸ He was content with an office in which record-keeping was sparse and imperfect and which was wholly dependent upon his own memory and knowledge.¹⁹ Though his contribution to reforming the courts was generously acknowledged by the Civil Service Commission,²⁰ it was clear that substantial changes in the LCO as well as the courts it supervised were badly overdue.

(p.788) The Council of Judges

One of the permanent secretary’s roles was as secretary to the Judges’ Council. This body, comprising all the judges of the SCJ, originated in a concession to Cockburn and his allies.²¹ It had an imposingly wide remit²² and was to meet at least annually, reporting to the Home Secretary.²³ Although the Lord Chancellor was a member, he did not usually attend, leaving it to be chaired by the Lord Chief Justice.

As has been remarked, the Council had considerable potential for reformist activities but it was never fulfilled.²⁴ It seems that the official report to the Home Office was made on just three occasions (in 1880, 1884, and 1892) and the KBD Commission in 1912 was told that it had met only three times in 33 years.²⁵ This is a misleading figure, however. In fact what was described as the Council met regularly until 1889 and debated several important subjects: appeals from the benchers of the inns of court; rules for district registries; the proposal for continuous provincial sittings; sentences in criminal cases; and the long vacation.²⁶ Above all they held repeated discussions on the vexed question of circuits and Assizes.²⁷ If the Council was to become the main forum for dealing with the organization and procedures of the SCJ, it was essential that its de facto head should be in broad sympathy with the Lord Chancellor, but Coleridge had come to resent what he felt was the expansion of the Lord Chancellor’s power at the expense of his own office, bemoaning ‘the enthroning of the Lord Chancellor upon the neck of all of us’ and finding ‘the great traditional influences of the Chief Justice and the deference to him lessened materially, in every way, year by year’.²⁸ Coleridge became a defender of the old system and led the opposition to key changes—the fourth Assize and grouping in particular. In 1887 he was the beneficiary of a remarkable act of deference on Halsbury’s part. (p.789) Comprehensively outvoted on a proposal to impose extensive grouping for civil matters and to have home counties litigation heard in London in exchange for the end of the hated fourth Assize, Coleridge nevertheless backed the reactionary diatribes of Grantham J. with a ‘bizarre outburst’ of his own.²⁹

Halsbury gave way but the episode probably left him disenchanted with the Council. At all events, its regular meetings ceased not long afterwards and the only time he summoned one after 1890 was to fend off demands for a royal commission.³⁰ After 1892 it did not meet again until 1904, when it considered proposals to alter the long vacation; there was a meeting in 1907 for the same purpose.³¹Loreburn and Haldane disparaged the Council and Schuster’s reading of the papers (and perhaps a briefing by Muir McKenzie) suggested to him that ‘the proceedings on each occasion have not been such as to encourage those present to come together again with any lively hopes of any good result’.³²Brief revivals between the wars confirmed that view and it was at length abolished in 1981.

The Rule Committee

As established in 1881 the Rule Committee comprised the heads of the divisions and the Court of Appeal, plus four judges.³³ The judges were in practice nomi-nated by the chiefs, two from the QBD and one apiece from Chancery and the Court of Appeal.³⁴ Though Halsbury had rebuffed the professional bodies’ call for formal consultative status, in 1894 Herschell expanded the Committee to include the president of the Law Society ex officio and a further two persons, at least one a practising barrister.³⁵ Given the shortness of the president’s term and his other commitments this hardly provided effective representation of solicitors, and in 1909 it was modified. Henceforth both bar and solicitors were to have two representatives, a silk and a junior nominated by the Bar Council, a London solicitor named by the Law Society and a provincial one chosen by the Lord Chancellor.³⁶ The(p.790) full Committee of 12 was rather unwieldy and it was seldom that everyone attended. Most judges sat for only a few years but a few made substantial contributions, examples being Lindley and Chitty in the early years and Channell in the 1900s.³⁷ No rule was ever annulled under the parliamentary procedure, but dissents were now and then recorded.³⁸

It was sometimes suggested that the Committee would benefit from having a master as a member, and the impressive contribution made by Master Chitty to rule-making after the First World War lends substance to this argument.³⁹ It was, after all, from the masters (who held monthly meetings) that most suggestions for amendment came.⁴⁰ The law societies were another frequent source (more so than the Bar Council, though that was very active in criticizing the new in forma pauperis rules which dominated the Committee’s meetings from 1910 to 1914⁴¹). Much of the Committee’s business, however, arose from new statutes.⁴²

At intervals in the 1890s the Committee’s composition and activities came under strong criticism.⁴³No one denied its industry (it usually held two or three meetings a year) or productivity; 24 sets of rules were said to have been added to the 1883 code by 1894 and a further six between 1896 and 1899.⁴⁴ The quality of the drafting, however, left much to be desired. Order 30 (the summons for directions) proved a particular embarrassment. Rule changes of 1894 needed a six-strong Court of Appeal to interpret and then a further rule to remedy the consequences of their decision.⁴⁵Furthermore, despite the abundance of rules they did not cover all details of practice and were supplemented by a growing body of practice directions issued by the chiefs.⁴⁶ These contributed to swell the Supreme Court Practice (the ‘White Book’), which had reached 2400 pages with an index of 332 by 1914,⁴⁷ and which it was said only Chitty and perhaps Bray J. (p.791) fully mastered.⁴⁸ Its intimidating bulk was a measure of how far the hoped-for simplicity of the Judicature Acts had become encrusted with procedural niceties and complications,⁴⁹ and the only attempt the Committee made to consolidate the rules, in the mid- 1890s, was left incomplete.⁵⁰