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 is 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.
The Queen as Fount of Justice
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 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 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 the judicial independence which exists today.
The Queen and Scottish Law
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 rule introduced to England by William the Conqueror was brought to Scotland by King David I (reigned1124-53), 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 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 some time 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 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 recommendation of the Scottish First Minister.
Other judges of the Supreme Court, and Sheriffs, are also appointed by The Queen on recommendation of the First Minister.
The Queen and Northern Irish Law
The Belfast Agreement (also known as the Good Friday Agreement) of 10 April 1998 established the current basis for Northern Ireland's devolved system of government within the United Kingdom. The Northern Ireland Act 1998 made provision for the implementation of that agreement.
Following an historical vote by the Northern Ireland Assembly in March 2010, responsibility for justice and policing in Northern Ireland was transferred to the Northern Ireland Assembly and Executive in April 2010.
At this moment, the sections of the Department of Justice (Northern Ireland) Act 2010 establishing the position of a Minister of Justice and a Department of Justice came into force.
The Justice (Northern Ireland) Act 2002 was also enacted and established a new post of Attorney General for Northern Ireland, who is the chief legal adviser to the Northern Ireland Executive.
That Act also created the office of Advocate General for Northern Ireland, to be held by the Attorney General of England and Wales. The Advocate General for Northern Ireland is the chief legal adviser to the UK Government on Northern Ireland law, and has reduced responsibilities in Northern Ireland.
The Queen’s role in judicial matters includes the appointments of:
- The Lord Chief Justice of Northern Ireland, a position created in 1922. The Lord Chief Justice holds the office of President of the Courts of Northern Ireland and is also Head of the Judiciary of Northern Ireland. The appointment is made on the recommendation of the Prime Minister.
- The twelve other Commissioners of the Northern Ireland Judicial Appointments Commission, who are in turn responsible for appointing members of the judiciary in Northern Ireland. The appointment is made on the recommendation of the Lord Chancellor.
- Judges of the High Court of Northern Ireland, upon recommendation by the Lord Chancellor of persons selected and recommended by the Northern Ireland Judicial Appointments Commission.
- Lords Justice of Appeal, on the advice of the Prime Minister.
- The Northern Ireland Judicial Appointments Ombudsman, on recommendation from the Minister of Justice for Northern Ireland.