Sunday, 20 November 2011

The counties of Lancashire

Legally speaking, "Lancashire" (or "the county of Lancaster") can mean any one of four distinct entities:
  • The non-metropolitan county of Lancashire, as defined by the Local Government Act 1972 (Sch. 1, Part II).
  • The ceremonial county of Lancashire, as defined by the Lieutenancies Act 1997.
  • The county palatine of Lancashire, as first created in 1351 (and subsequently reconstituted).
  • The Duchy of Lancaster, as first created in 1343 or 1351 (and subsequently reconstituted).

1.  Lancashire as an administrative unit

The English county system, which had been in place since mediaeval times, began to break down in the 19th century with the advent of the modern administrative state.  The modern administrative counties were established as units of local government by the Local Government Act 1888, which created the administrative county of Lancashire.  The present-day successor to the 1888 Act is Ted Heath's Local Government Act 1972; this defines the scope of the non-metropolitan county of Lancashire, which is governed by Lancashire County Council.

Lancashire as a ceremonial county (or, strictly speaking, a county for the purposes of the Lieutenancies Act 1997) consists of the administrative county of Lancashire and the unitary authority areas of Blackpool and Blackburn with Darwen.

2.  The duchy and the county palatine

A county palatine was essentially a county in which the local nobleman - in this case, the Duke of Lancaster - enjoyed prerogatives corresponding with those enjoyed by the monarch over the country as a whole (iura regalia).

As far as the history of the duchy and county palatine of Lancashire are concerned, it is worth quoting verbatim from the recent decision of the First-Tier Tribunal in Cross v Information Commissioner (EA/2010/0101):
9.  In 1265 the estates of Simon de Montfort were confiscated by Henry IIIrd. and granted to Henry's younger son. The duchy was created in 1351. In 1362 it was conferred by Royal Charter on John of Gaunt, Earl of Lancaster, a son of Edward IIIrd.
10.  John of Gaunt's son, Henry Bolingbroke, acceded to the throne as Henry IVth. in 1399 upon the deposition of Richard IInd. Henry ensured the separation of his hereditary family estates from those of the Crown by charter in the same year and his successors maintained that separation in the same way. In 1485, following the wars of the roses, Henry Tudor (Henry VIIth.) vested the duchy estates in himself and his heirs by charter as a separate inheritance from the Crown.
11.  Therefore, since the fourteenth century, the Duchy estates have been vested in the Sovereign, though as a separate inheritance from the Crown, as recognised in The Duchy of Lancaster Case (1561) 1 Plowd. 212. The Sovereign therefore retains the revenues of the Duchy for her private use.
12.  The Chancellor to the Duchy of Lancaster has been a member of the cabinet throughout the last century or more. He has occupied a dual role, as steward of the Duchy estates, as to which his duty is to act solely in the interests of those estates and as a political figure, in which role his functions are unrelated to the Duchy. He is appointed by the Sovereign on the recommendation of the Prime Minister and receives separate seals of office from the Sovereign in respect of each aspect of his role.
The Tribunal went on to find that the duchy is not a government department, a publicly-owned company or a body that carries out public functions.

Strictly speaking, the Queen is not the Duke (or Duchess) of Lancaster, in spite of holding the Duchy of Lancaster, since the ducal title merges into that of the Crown.  However, it is customary at social events in the county palatine to toast "the Queen, Duke of Lancaster".

The county palatine of Lancashire forms part of the duchy, but it is not coterminous with it.  Halsbury's Laws states:
Though the county palatine is incorporated with the Duchy of Lancaster by charter, the duchy as an honour is distinct from the county palatine and includes much territory lying outside the county palatine, such as a district surrounded by the city of Westminster in which the Court of the Duchy Chamber is situated.
The Chancellor of the Duchy - currently Lord Strathclyde - is something of a constitutional curiosity.  The duchy itself says:
Appointment to the role of Chancellor is made by Her Majesty The Queen on the recommendation of the Prime Minister. The Chancellor is accountable to the Sovereign personally, rather than to Parliament, for the Duchy’s affairs, and receives and surrenders the seals of office separately from other Cabinet colleagues. However, the Chancellor does answer Parliamentary Questions on matters relating to his Duchy responsibilities.
There is also a Duchy Council and various other administrative office-holders, including an attorney general, a receiver general, an auditor, a solicitor, a seal keeper and a cursitor.

The Queen, in right of the Duchy of Lancaster, is still entitled to make a variety of appointments within the county palatine:
  • the High Sheriffs of Lancashire, Merseyside and Greater Manchester (Local Government Act 1972, s.219(3));
  • the Steward and Barmaster of the Barmote Courts of Derbyshire;
  • the High Constable of Lancaster Castle; and
  • members of the Councils of Liverpool and Salford Universities.
The rights over the administration of justice associated with the county palatine have now mostly been returned to the Crown (a process which began as long ago as 1535).  The Court of Chancery of the County Palatine of Lancaster was merged into the High Court by the Courts Act 1971 (ss.41(1), 57(3)(b)), and the Chancellor of the Duchy lost his right to appoint Justices of Peace within the county under the Courts Act 2003.  The county's Court of Duchy Chamber still appears to exist.  The office of Vice-Chancellor of the County Palatine of Lancaster also continues to exist (Courts Act 1971, s.44(1)(b)).  The Vice-Chancellor is always a High Court judge, and he supervises the business of the Chancery Division of the High Court in northern England.

The rights belonging to the duchy include the royal right to bona vacantia (Dyke v Walford (1848) 13 ER 557).