Relationship between UK Crown and law in focus as Carolean era begins

Polly BotsfordThursday 22 September 2022

The last way of the Queen Elizabeth II. Pall Mall decorated with British flags for funeral ceremony. IRStone/AdobeStock

When thousands of Britons queued to pay their respects to Queen Elizabeth II as she lay in state, they filed into Westminster Hall. The Hall, a vast stone chamber and more than 900 years old, was where the main law courts were situated until the early 19th century. Oak planks defined each court, with benches put out for litigants.

The link between the Crown and the law is not incidental. The Crown is considered to be the source of all justice in the UK. Enter any courtroom in England and Wales and it’s the Royal Coat of Arms that hangs above the judge. Judges derive their authority from the Crown and are, officially, appointed by the Crown. Nowhere is this written down as law, as the UK does not have a written constitution, but it’s manifest all over the country.

It’s not absolutely clear, however, what the ‘source of all justice’ really means. In history, the Crown was, in a very literal sense, the fountain of all laws: Anglo-Saxon monarchs would, broadly speaking, have adjudicated on most matters of dispute. Over time, they sent out ‘the King’s Judges’ to do their adjudicating for them.

It wasn’t until the 18th century that a measure of distance was put between Crown and judge. Following the English Civil War and the Restoration, the Act of Settlement 1701 gave the judiciary security of tenure so they couldn’t be dismissed at the whim of the Crown, thus paving the way for a modern notion of judicial independence. Today, the UK Supreme Court is the final adjudicator.

The Crown did, and still does, have specific legal powers, referred to as the royal prerogative. But in the modern era, there are very few areas where the power resides purely with the monarch – they are mostly archaic, such as the right to sturgeon, swans and whales. Most of the powers are either exercised by the Crown’s ministers – the government of the day – or by the Crown but on ministerial advice.

The Crown in its symbolic sense, represents what in other places would be a core element of a written constitution

Professor Maurice Sunkin KC
Professor of Public Law and Socio-Legal Studies, University of Essex

The Crown’s place as a ‘source of all justice’ is similar to its position as the source of legislative and executive authority in the UK. Each of the three powers: the judicial, the executive and the legislature, operate ‘in the name of the Crown’. In republican-based systems, this would be ‘in the name of the state’. In the UK, there’s no notion of a ‘state’ in law. Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute, argues that ‘the “Crown” is really just an incarnation of the “state”, and reflects the historical journey which has got us to this point.’

Professor Maurice Sunkin KC, Professor of Public Law and Socio-Legal Studies at the University of Essex, puts it slightly differently. ‘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 Crown in its symbolic sense, represents what in other places would be a core element of a written constitution.’

It’s also true, however, that a modern state is called upon to consider not only where its power comes from but also how it exercises that power and thus ensures that it upholds the rule of law. It’s hard to discern how the Crown fits with that worthy principle.

Certainly, part of the Crown’s task, acting through the monarch, is to uphold justice, and this happens right at the outset in the monarch’s Coronation Oath – which has been around since a parliamentary act passed in 1689. In it, the monarch makes it clear that they will ‘Cause Law and Justice in Mercy to be executed’ in ‘all […] judgements’.

Sunkin KC sees a role for the Crown as a protector of the rule of law. ‘If we think that the greatest threat to the rule of law is an executive autocrat where the governing party grabs power, under the system we have, even such a government can’t claim power for itself because government is only there in the Crown’s name,’ he says. ‘And so it is only one branch of an overarching concept called the Crown.’

But in another way, the Crown appears to operate above the rule of law because it’s protected by sovereign immunity. The Crown itself is not bound by statute nor by the common law. The monarch cannot be personally prosecuted and cannot be litigated against, though His or Her ministers and public servants can. So even if the monarch doesn’t do what they swore to do, there’s not much her or his subjects can do about it.

Some experts feel that this should probably change. As Sir Stephen Sedley, a former Appeal Court judge and now a writer on constitutional and legal affairs, once commented: ‘It is not inexorable in a constitutional monarchy that the Monarch cannot be given a parking ticket like the rest of us.’

As the UK enters a new era with the succession of King Charles III, it must be worth asking whether or not it matters for justice that the Crown has this intangible part to play. ‘If you ask a judge what difference it makes that they are appointed by a monarch or by a state, they may say that it does make a difference, psychologically,’ says Professor Robert Hazell, Professor of Government and the Constitution at University College, London, and Founder of its Constitution Unit. ‘The Crown feels more independent of politics, independent of the government of the day. The Crown speaks of public service. Your appointment must feel less to do with the fleeting moments of a government’s time in office and more to do with this fixed and constant thing called the Crown.’

Download the IBA Global Insight app

Access expert analysis on international rule of law, business and human rights

Join the IBA

Expand your international network, gain new business and learn about the latest legal developments through IBA digital content and events, with IBA membership. Available for individuals, students, law firms, bar associations and corporations.

Find out more