First of all, sincerest jubilations to HM The Queen on the Diamond Jubilee from me personally. HM The Queen is as relevant today to law and justice in the UK as she ever has been, and this blogpost is a discussion of that.
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. However, she has an important 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 Ministerial powers traditionally examined all tend to flow from the ancient prerogatives of the Crown. The Royal Prerogative itself is a notoriously difficult concept to define adequately. The classic definition was given by A.V. Dicey, who described the royal prerogative as: “… the remaining portion of the Crown’s original authority, and it is therefore … the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers”.
The Ministry of Justice reviewed Royal Prerogative in 2009, with an interesting report.
“Parliamentary interest in the Royal Prerogative in its various guises – especially in relation to war powers, treaties, passports, the civil service, and the Royal Prerogative of Mercy – has continued since publication of the Government’s response to PASC. In addition to periodic Parliamentary Questions as to the Government’s intentions:
[For example] Lord Lester introduced a Private Member’s Bill, the Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill on 17 January 2006. Its purpose was to ‘place under the authority of Parliament executive powers exercisable by Ministers of the Crown by virtue of the Royal prerogative; to make provision relating to the appointment and conduct of, and general duties relating to, civil servants and special advisers; to make provision about nationality requirements for persons employed or holding office in a civil capacity under the Crown; to establish a procedure for the making of certain public appointments; to make provisions about access to the Parliamentary Commissioner for Administration; and for connected purposes’. Aspects of this Bill were in turn based on Lord Lester’s Executive Powers and Civil Service Bill (introduced on 18 December 2003). The later Bill passed through the Lords, but did not proceed further in the Commons.”
The Royal Prerogative issue of mercy has also been incredibly complex, especially this power has been exercised for many hundreds of years. Specifically, it is the power of the Sovereign to show mercy towards an offender, by mitigating or removing the consequences that follow conviction for an offence. Its use – reflected in the coronation oath in which the Sovereign promises to administer justice ‘in mercy’ – arose in cases in which the Sovereign felt it necessary to intervene personally to ensure justice was done There have been numerous legislative changes in shaping this Royal Prerogative. The High Court’s ruling in the case of R (Shields) v Secretary of State for Justice26 emphasised the breadth and flexibility of the Royal Prerogative of Mercy, together with the Secretary of State’s right to formulate appropriate policies and criteria for its application. In the view of the Government it would be inappropriate to grant a free pardon where a statutory remedy is available. It is now considered that only rare cases, where no statutory remedy, is available could be considered under the prerogative. Section 16(1) of the Criminal Appeal Act 1995 provides for assistance on the Royal Prerogative of Mercy by the Criminal Cases Review Commission. It provides that the Commission must consider any matter referred to it by the Secretary of State in his consideration of whether to recommend the exercise of the Royal Prerogative of Mercy; that the Commission must provide a statement of its conclusions on that matter, and that in considering whether so to recommend, the Secretary of State must treat the Commission’s statement as conclusive of the matter referred. The fact that the provision has never been used lends further support to the view
The issue of whether Meghari should have been released, prior to his recent death, has continued to torment this and the previous UK government. Stephen Glover wrote recently in the Mail:
“The death of Abdelbaset Al Megrahi in Libya should remind us of one of the most shameful episodes in modern British history. It has involved nothing less than the subverting of British justice for commercial gain. Megrahi was a convicted mass murderer who was cynically traded by the last Labour government in return for commercial opportunities in Colonel Muammar Gaddafi’s Libya. If this seems an almost incredible charge, I am afraid it is one that can be sustained by ample evidence. Megrahi was released from prison by Alex Salmond’s Scottish National Party government in August 2009 on supposedly compassionate grounds. It was confidently stated that he had only three months to live.”
Early release on compassionate grounds was most commonly used where a prisoner had very serious or terminal health problems. In England and Wales statutory powers are now available, under section 248 of the Criminal Justice Act 2003 (replacing powers under section 36 of the Criminal Justice Act 1991), and section 30 of the Crime (Sentences) Act 1997. These give the Secretary of State a broad power to release both determinate and life sentence prisoners on licence on compassionate grounds. One can debate, with considerable interest, whether we have a situation now where ministerial decisions on compassionate grounds, for example by Alex Salmond or the English government, are many or less reliable than those taken strictly through the Royal Prerogative.
Waging war, for example most recently in the example of whether we should have gone into the Iraq War, has continued to be a vexing question.The House of Lords Constitution Committee published a report in July 2006, entitled Waging War: Parliament’s Role and Responsibility, which called for a Parliamentary convention obliging Governments always to seek Parliament’s approval when committing the Armed Forces to action in future conflicts.” In a rather prophetic conclusion to a very interesting by Michael White in the Guardian discussing potential review of these ‘democratic powers’ in 2006, White concluded:
“Tony Blair’s two Iraq dossiers, a half-cock attempt at transparency which went horribly wrong, will not be tried again in a hurry. The peers reject giving parliament statutory power over military deployment in favour of developing the 2003 precedent into a constitutional convention. Except in emergencies it would expect ministers to notify parliament of a pending military deployment’s objectives and legal basis in advance, and obtain its approval. Would our boys now be in Afghanistan’s Helmand province if that procedure had been in place?”
And finally Europe. 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. It is certainly beyond the scope of this article to consider whether the powers of the Queen whether or not in the name of sovereignty should be enhanced or diminished by Europe, but that certainly providing yet further compelling indication that the Queen’s impact on the law is as relevant today as it ever has been.
Disclaimer: The author is a Queen’s Scholar, and is very proud to celebrate the Diamond Jubilee of HM The Queen. This article further does not represent the views of BPP or the BPP Legal Awareness Society.
