HM the queen opening parliament

Our Heritage:
The Common Law of England

by Lord Justice Laws

The common law of England is The Queen's law not the Government's, and that is what gives it its strength.

The Queen's Speech is delivered to a ceremonial assembly at which all the State powers are gathered in the presence of the Sovereign: legislature, executive and judiciary. It's not merely an event in the political calendar it is a living tableau of our constitutional monarchy.

And it is the monarch who is, historically, the fount of the powers of the High Court of Justice. They have never been defined by Parliament and Parliament did not confer them. The modern statute dealing with the High Court's powers (section 19 of the Senior Courts Act 1981) provides that 'there shall be exercisable by the High Court... all such... jurisdiction... as was exercisable by it immediately before the commencement of this Act'. And predecessor statutes made like provision.

The statutes thus confirmed a jurisdiction exercisable since the Middle Ages. It may be traced to the first common-law court, the aula regis or curia regis of William I, the Conqueror. At length, it became the Court of King's Bench today's High Court Judges of the Queen's Bench Division are its direct successors and have inherited its high jurisdiction. It is, and always has been, a royal jurisdiction. Its power is the royal power.

The King's Bench was the most powerful of the four courts that developed over the Middle Ages (the other three were the Common Pleas, Exchequer and Chancery). It corrected the errors of other courts. In the late 17th century, Chief Justice Holt stated that 'no Court can be intended exempt from the superintendency of the King in this Court of Banco Regis'. And the great Sir William Blackstone, writing in 1768, stated in Book III of his Commentaries: 'The jurisdiction of this court is very high and transcendent. It keeps inferior jurisdictions within the bounds of their authority.'

The judges of the High Court don't only sit in London, although that is where they are based. In the second half of the 12th century, Henry II first sent the judges round the English shires to administer the common law of England. More than the State Opening of Parliament 800 years later, The Queen's Judges of the High Court still go out on circuit. To Winchester, Bristol, Exeter, Plymouth and Truro on the Western Circuit; Manchester, Preston and Liverpool on the Northern; Leeds, Sheffield, Teesside and Newcastle on the North Eastern. And to Wales, the Midlands, and the South East. They still administer the common law: The Queen's justice. They try the gravest cases, up and down the country: murder, rape, terrorism.

King John was the son of Henry II. He succeeded his elder brother, Richard I, the Lionheart, on the throne of England. Like his father, John has an important connection with the law, although not, for him, an entirely welcome one. He gave assent to the Great Charter Magna Carta at the insistence of the barons at Runnymede in 1215. It passed into law in 1225, and was re-enacted in 1297. The surviving clauses of the Magna Carta remain in full force and effect as an Act of Parliament. Giving judgment in the year 2000 in a case called Bancoult, to do with the Ilois people of the Chagos Islands in the Indian Ocean, I confessed 'to having been dismayed to hear the government submit... that the Magna Carta belonged to some unspecified category of subordinate law. But counsel rightly resiled from that position.' Lord Denning described the Magna Carta as 'the greatest constitutional document of all times the foundation of the freedom of the individual against the arbitrary authority of the despot'.

Over the trials and tribulations of our long history, the executive power has passed from the hands of the sovereign to elected government, and the judicial power to the courts. In 1607, when James I asserted a claim to administer justice himself, Chief Justice Coke stated in the case of Prohibitions del Roy that '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'. Sir Edward Coke's pronouncements against the royal power have, by the genius of the common law, become part of the fabric of our constitution's guarantees against arbitrary rule in the democratic age, and this is done, and rightly done, in The Queen's name.

The sovereign today is above politics, but remains the historic source of legal power. The common law of England is The Queen's law, not the Government's. It protects the ancient and modern freedoms of The Queen's subjects.

The European Union claims to protect the Rights and Liberties of its citizens. England has been doing the same thing for a thousand years, more effectively, more openly, and with a lot less verbage.




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