In the earliest times, the Sovereign was a key figure in the enforcement of law and the establishment of a system of justice. Nowadays the Sovereign retains a symbolic role as the figure in whose name justice is carried out, and law and order are maintained, but is not involved in the actual administration of justice. The independence of the legal system and the Sovereign’s role as the source of justice have developed over many centuries. In late Anglo-Saxon times, the concept of the Sovereign as the ‘Fount of Justice’ grew in importance as it helped to ensure that a single system of justice prevailed over competing for local, civil and ecclesiastical jurisdictions. Ethelbert’s reign (560-616) saw the first law code written in the vernacular. Kings such as Alfred the Great (reigned 871-99) extended the law codes by codifying community custom, administrative regulations and ancient law.
Successive kings preserved and adapted the body of English laws which had been accepted by the community and which past kings had published, and case law supplemented these law codes. This accumulated legislative power placed responsibilities on the king as a dispenser of justice to ensure order and punish crime. From William the Conqueror (reigned 1066-87) onwards, Royal justice was more effectively enforced by the king’s appointment of local sheriffs, travelling justices and other officials to administer justice in the Sovereign’s name throughout the kingdom. A chronicler of 1179 wrote of Henry II (reigned 1154-89): ‘he appointed wise men from his kingdom and later sent them through the regions of the kingdom assigned to them to execute justice among the people … This he did in order that the coming of public officials of authority throughout the shires might strike terror into the hearts of wrongdoers.’
The Royal courts were therefore at the centre of the administration of justice in both civil and criminal cases, and Sovereigns themselves took an active part in their own courts, with the king sometimes presiding over the proceedings. By the fifteenth century, the central courts had settled at Westminster, and the Courts of Justice remained housed at Westminster Hall (built in 1097 and renovated in 1394) until 1882. However, there were limits to Royal enforcement of justice or ‘the king’s peace’. These included the geographical distance of the more remote shires (particularly on the troubled borders of the Welsh Marches and Scotland). There was independent jurisdiction in ‘palatine counties’, where Royal powers were granted in the franchise to an individual. There were also ecclesiastical jurisdictions and, above all, the Sovereign’s reliance on local barons and gentry to uphold the law in the regions, liable to break down in times of civil war.
As Parliament’s legislative role grew and day-to-day power came to be exercised by Ministers in Cabinet, so the Sovereign’s role in actually administering justice declined. The Bill of Rights (1689) (in Scotland, the Claim of Right) confirmed the basic constitutional principle that the Sovereign no longer had any right to administer justice. The Sovereign’s responsibilities regarding the judiciary also waned. Under the Act of Settlement (1701), judges were to hold office during good behaviour rather than by the Sovereign’s will. Judges could be removed by the Sovereign on the advice of Ministers, either following an address presented by both Houses of Parliament or without an address in cases of official misconduct or conviction of a serious offence. The Act, therefore, established judicial independence which exists today.
The task of administering justice in the UK is carried out by members of a judiciary acting in The Queen’s name. The Queen does not herself judge any case nor does she play any part in the judicial process. But she has a symbolic role. By the coronation oath, and by common law and various statutes, the Sovereign is required to cause law and justice with mercy to be administered to all. In the United Kingdom, all jurisdiction, therefore, derives from the Crown. The courts are The Queen’s courts; the judges are Her Majesty’s judges and derive their authority from the Crown; criminal prosecutions are brought in the name of the Sovereign against those charged; the prisons are Her Majesty’s Prisons. In previous decades prisoners used to be detained ‘at Her Majesty’s pleasure’. In the area of law, as in her other public actions, The Queen acts solely on the advice of her Ministers. For example, although The Queen appoints senior judges, she does so on the advice of the Prime Minister. The Queen also exercises the prerogative of mercy, by which the Sovereign may, for example, grant free or conditional pardons or remit penalties, on the advice of her Ministers.
The Scottish legal system developed separately from the legal system in England, and the Sovereign plays a different role in it to that in England and Wales. The Crowns of England and Scotland were not united until 1603 when the Scottish King James VI ascended the English throne. Until the Act of Union of 1707 (which established the Parliament of Great Britain) Scotland had her own Parliament. In the Act of Union, the continued existence of a separate legal system in Scotland was expressly provided for. The system of a rule introduced to England by William the Conqueror was brought to Scotland by King David I (reigned 1124-53), and there too emerged the idea of the king as the fountain of justice.
In his reign, King David’s court heard important cases and appeals from the lower courts. Justiciars appeared as the King’s delegates for the administration of justice and they went on the circuit to deal locally with cases not heard by the King’s Court. The office of Sheriff (appointed by and acting on behalf of the King) was also established by David I, and lesser cases were heard from time to time in the Sheriff’s Court in various places throughout Scotland. The Scottish Parliament evolved sometime in the thirteenth century. It originally existed as a Supreme Court and was derived from the King’s Court sitting with counsel for discussion. In the administration of criminal justice, the office of King’s Advocate emerged in the fifteenth century. The King’s Advocate was entitled to appear in cases to represent the King’s interests in securing law and order (at that time all but the most serious crimes were pursued by the injured party).
By an Act of the Scottish Parliament of 1587, the Advocate was authorised to ‘pursue slaughters and other crimes although the parties be silent or would otherwise privily agree’. The system of public prosecution in Scotland surviving to this day was created, allowing the Advocate to prosecute regardless of the private interests of the parties. The Lord Advocate (or Her Majesty’s Advocate), as he is now known, is appointed by The Queen on the recommendation of the Prime Minister. He is responsible for virtually all prosecutions in Scotland (which are on behalf of the Crown). As in England, the role of The Queen in judicial matters has become symbolic. The Claim of Right of 1689 established the independence of the judiciary and provided for judicial office to be held during good behaviour (as the Act of Settlement did in England) rather than by the will of the Sovereign. Today, Scotland’s two most senior judges, the Lord President and the Lord Justice Clerk, are appointed by The Queen on the recommendation of the Scottish First Minister. Other judges of the Supreme Court and Sheriffs are also appointed by The Queen on the recommendation of the First Minister.
People often wonder whether laws apply to The Queen since they are made in her name. Given the historical development of the Sovereign as the ‘Fount of Justice’, civil and criminal proceedings cannot be taken against the Sovereign as a person under UK law. Acts of Parliament do not apply to The Queen in her personal capacity unless they are expressly stated to do so. However, The Queen is careful to ensure that all her activities in her personal capacity are carried out in strict accordance with the law. Under the Crown Proceedings Act (1947), civil proceedings can be taken against the Crown in its public capacity (this usually means proceedings against government departments and agencies, as the elected Government governs in The Queen’s name).
In the case of European Union law, laws are enforced in the United Kingdom through the United Kingdom’s national courts. There is, therefore, no machinery by which European law can be applied to The Queen in her personal capacity. However, it makes no difference that there is no such mechanism, as The Queen will in any event scrupulously observe the requirements of EU law. As a national of the United Kingdom, The Queen is a citizen of the European Union, but that in no way affects her prerogatives and responsibilities as the Sovereign.
In the earliest times, the Sovereign was a key figure in the enforcement of law and the establishment of legal systems in different areas of the UK. As such the Sovereign became known as the ‘Fount of Justice’. While no longer administering justice in a practical way, the Sovereign today still retains an important symbolic role as the figure in whose name justice is carried out, and law and order are maintained. Although civil and criminal proceedings cannot be taken against the Sovereign as a person under UK law, The Queen is careful to ensure that all her activities in her personal capacity are carried out in strict accordance with the law.