Ahead of the coronation of King Charles III, Catherine Barnard examines the relationship between the monarchy and the courts. This piece is taken from UK in a Changing Europe’s new report, ‘The British Monarchy’, co-published with the Constitution Unit.
Nowhere are the complexities of the UK’s evolving constitution clearer than in the relationship between the monarch and the courts. The starting point is 1066 and the Norman conquest. Norman monarchs believed that the ‘King is the fountain of all justice throughout his Dominions, and exercises jurisdiction in his Council, which act in an advisory capacity to the Crown’. This early use of the word ‘Crown’ drew no distinction between the office of the monarch and the individual, a view confirmed in the 1561 Case of the Duchy of Lancaster, where the judges said the King had a ‘body natural and a body politic together indivisible’.
This mixing of the Crown and the judicial system, which to modern eyes looks at best quaint and at worst murky, continues today. As the current Lord Chief Justice, Lord Burnett, put it, ‘[t]hat the sovereign remains the fountain of justice is evidenced daily in our courts. It is symbolised by the Royal Court of Arms in our courtrooms’.
But it goes further than that. Professor Martin Loughlin notes that all ‘jurisdiction is […] exercised in the name of the Queen [now King], and all judges derive their authority from her [his] commission’ (i.e. judges are appointed by the King on recommendation of the Lord Chancellor). Senior Advocates are King’s or Queen’s Counsel (KC or QC), a title dating back to 1597, when Sir Francis Bacon was granted precedence at the bar during Queen Elizabeth I’s reign. More significant cases are heard in the Royal Courts of Justice in the Strand in London; one of the divisions in the High Court is the ‘King’s Bench Division’.
With the evolution of a constitutional monarchy, power shifted from the monarch personally to the executive. Yet the coming together between Crown and courts continues, not least in the nomenclature: Crown Court, the Crown Prosecution Service, the Crown Office and Procurator Fiscal Service. Prosecutions are made in the name of the Crown (cases are cited as R (for Rex or Regina) v. [the name of the defendant]). Judicial reviews of executive acts are also brought in the name of the Crown.
As (relatively) recently as 1965, Lord Devlin said in the House of Lords in Re K ‘all justice flows from the [royal] prerogative’. This has the practical consequence that the monarch is immune from prosecution, even for parking offences. In response to a freedom of information request, the Ministry of Justice (MoJ) said ‘the King, as head of state, has sovereign immunity from both civil and criminal proceedings. That is a long-established customary rule of law not statutory provisions.’ However, the MoJ notes that the ‘Crown Proceeding Act 1947 allows for civil actions to be brought against the Crown in certain circumstances but this in general terms means His Majesty’s Government rather than the Sovereign.’ The monarch can also sue: the Queen twice sued The Sun for breach of copyright. Other members of the Royal Family have also sued various newspapers to prevent the publication of personal information.
What about the doctrine of separation of powers? The separation of courts from the monarch in person can be dated back to the famous Case of Prohibitions in 1607. James I wanted to decide a property dispute. He considered that there was no need to know any law to dispense justice. He was endowed by God with all the qualities that were needed and could apply his sense of justice. As Lord Burnett explains, Sir Edward Coke, then Chief Justice of the Court of Common Pleas, disagreed, saying, ‘the King in his own person cannot adjudge any case, either criminal – as treason, felony etc, or betwixt party and party; but this ought to be determined and adjudged in some court of justice, according to the Law and Custom of England.’
And so began the long and painful process by which the courts and the state started to separate. The judiciary is now seen as a separate branch of government, albeit until recently headed by the Lord Chancellor, a political appointee, which underlined the somewhat partial nature of the separation of powers. To create a separation of the judiciary and the executive, the Constitutional Reform Act 2005 made the Lord Chief Justice (Lord Burnett) the head of the judiciary, yet the nomenclature rooted in the Crown outlined above (Crown courts etc.) remains.
Professor Maurice Sunkin KC puts this more positively: ‘All the three instruments: government, the courts, and parliament, operate in the name of the Crown.’ It is a concept that unifies the system as a whole. He says: ‘so even though the three powers are separate, they are connected by – and working for – something beyond themselves and each other, which is the Crown.’ The language of the Crown is a legacy of the history that got the UK to this point.
The fact that there is an independent judiciary does mean that it is able to consider the scope of the (royal) prerogative powers, now mainly exercised by ministers not the Crown. Take, for example, Miller I where the Supreme Court examined whether the decision to start the Article 50 process for the UK to leave the EU could be taken by the Prime Minister herself, exercising prerogative powers (freely to enter into and to terminate treaties without recourse to Parliament). The Supreme Court said no; there needed to be an Act of Parliament.
Miller II concerned another prerogative power, this time to prorogue (i.e. suspend) Parliament. Traditionally, ‘the Government of the day advises the Crown to prorogue and that request is acquiesced to’. However, on this occasion the request to prorogue was for five weeks (not the usual few days) at the height of the Brexit crisis. This request would have forced the Queen to take a political decision and so put her in a constitutionally difficult position. She was spared by the Supreme Court’s decision that principles of parliamentary sovereignty and parliamentary accountability meant that the prorogation could not be justified.
The Miller cases show the sheer complexity of the constitutional web in the UK, mixing the functions of monarch, government, and state. A thousand years of history and the evolution of a piecemeal unwritten constitution have created the current structures, structures which still deliver an independent and good quality judiciary but whose trappings of power, including the room in which they sit, still refers to the monarch as the fountain of justice.
By Professor Catherine Barnard, Senior Fellow and former Deputy Director, UK in a Changing Europe.
This piece is one in a series of articles taken from UK in a Changing Europe’s new report, ‘The British Monarchy‘, co-published with the Constitution Unit.
