The Queen is Dead – Long Live the Rule of Law
Even many of us who are avowed Republicans – like the writer – nonetheless revered Her Majesty Queen Elizabeth II for her intelligence, grace and steady hand as Head of State in Australia and other countries. She was a strong supporter of the rule of law.
Whatever one’s political persuasion, none could gainsay that we are blessed to enjoy in Australia – among many other advantages – a democracy under which the rule of law prevails.
Such rule is embodied – in criminal and civil law spheres – in court enforcement of statutory and common law obligations, by a state funded and independent judiciary, assisted by officers of the court (barristers and solicitors) also independent in the sense of being bound by an overarching duty to the interests of administration of justice under strictly enforced ethical rules.
In the United Kingdom, before 1701, judges held office at the Sovereign’s pleasure. There were then many examples of judges being removed from office for deciding cases in a manner not in accord with the wishes of the incumbent monarch.
Judicial independence commenced with the 1701 enactment of the Act of Settlement. Security of judicial tenure – or, at least, the semblance of it – was thereby grounded.
Act of Settlement Article 7, which is actually the 7th clause of the 3rd Article, relevantly, provided:
[J]udges’ commissions be made quamdiu se bene gesserint,1 and their salaries ascertained and established but upon the address of both Houses of Parliament it may be lawful to remove them.
The outcome, however, was not plain sailing. Judicial tenure was inchoate. “Removals” continued.
Queen Anne, shortly after her accession in 1702, removed Sir John Turton (Court of Queen’s Bench) and Sir Henry Hatsell (Baron of the Exchequer). George I, upon his accession in 1714, removed Lord Trevor (Chief Justice of the Court of Common Pleas), Sir Thomas Powys (Court of King’s Bench), and Sir William Bannisteer (Baron of the Exchequer) respectively.
These ensued despite the patent of appointment of each being quamdiu se bene gesserint (ie during good behaviour). Each, it seems, was a victim of enmity directed towards perceived Jacobites and Tories.
Evan Haynes, in “Selection and Tenure of Judges”,2 wrote of the uncertainty remaining after the Act of Settlement:
It was still assumed, however, that on the death of the king, their commissions ceased, and should be renewed or not at the pleasure of the new sovereign. In 1720 a statute was enacted providing that judges (and certain other officers) should continue in office for six months after the demise of the Crown.
Finally, in 1761, a further statute enacted provided that “commissions of the judges shall remain in full force and effect during good behaviour, notwithstanding the demise of His Majesty or any of his heirs or successors”. The prospect of regal summary removal, thereby, was obviated. Tenure was secured.
Thus, the perennial British monarchy – ergo “The Queen is dead, long live the King” – for the last circa 250 years at least, has championed the rule of law.
Such legal protocol was adopted in Australia. While the tenure is no longer for life – rather, in most jurisdictions, being to age 70, short of earlier retirement – protections exist in the sphere of salary and pension guarantee. So much underscores the independence enjoyed.
Finally, only admitted lawyers – and then, ordinarily, only if they have been so admitted for a particular duration – can be appointed as judges – by Cabinet of the Commonwealth, state or territory – and then (ordinarily) only upon recommendation and advice from an appointment panel. This provides further checks and balances.
Likewise, barristers and solicitors are admitted by the court and can only lose their admission status upon order of the court adjudicated on the merits apropos of misconduct.
Queen Elizabeth II, in speeches given as Head of State, spoke underscoring the importance of the rule of law, and the maintenance of it by independent judges and lawyers engaged in its administration.
I will refer to two speeches only – delivered in the United Kingdom and Australia, respectively, 12 years apart3 – as they are representative. In each, the touchstone identified is that of the “inheritance” of the rule of law from the Regal Head of State.
Speaking in London on 10 October 1968 at the opening of the Queen’s Building Extension to the Royal Courts of Justice, Her Majesty said:
The judiciary is one of the oldest and most honourable branches of the service of The Crown. It is also one of the most vital because, as the yearbooks tell us, the law is the highest inheritance of the King, for both he and all his subjects are ruled by it. And if there were no law, there would be neither King, nor inheritance. That is as true today as it was five centuries ago. The attachment of our people to law is the foundation of our constitution and of our civilisation. As the independent custodians of the law, the judges bear a direct and personal burden of responsibility, which makes their office a lonely and difficult one. We are fortunate that our judges are worthy inheritors of the great traditions of their predecessors. As our world becomes more complex, so the task of doing justice between man and man, and man and the State becomes more difficult and even more important. Therefore, we must continue to be able to rely on the strong and peerless legal profession. The Bar’s independence is as much a safeguard to our liberties today as it has been in the past. I welcome the completion of the new court building. I am glad, my Lord Chancellor, [Lord Gardiner] to grant your request that it be called the Queen’s Building. I know that my judges, and all those who assist them so devotedly, will administer justice there in accordance with the finest traditions of their calling. 4 (emphasis added)
In a speech delivered on 26 May 1980 on the opening of the High Court Building in Canberra, Her Majesty said:
… the High Court of Australia is at the pinnacle of the judicial system in Australia. It has a special place under the Australian Constitution, serving both as a final court of appeal on matters of general law and as arbiter on constitutional issues. The court has a critical and sensitive role in the Federal compact that binds the Commonwealth of Australia, determining the law not only between citizen and citizen, and between citizen and executive Government, but also between the Governments that constitute the Commonwealth of Australia. We should remember today Chief Justice Griffith and Justices Barton and O’Connor, who constituted the High Court of Australia in 1903, and with their successors defined the role of the court, in accordance with the Constitution, and established for it a fundamental place in the national life.
I am pleased to pay tribute to the judiciary of Australia – including the judges present today and the justices of this court in particular – for the admirable way in which they discharge their onerous responsibilities. The law of the land is a priceless inheritance and it secures the liberties which, as individuals and as a nation, we prize. In times of social change and tensions in the world, great are the demands upon the courts and the challenges to them in reconciling competing interests and in accommodating traditional rules to new circumstances. The High Court of Australia has earned great, respect, both within Australia and beyond, and it is; recognised as a court of the highest eminence among the courts of the nations.5 (emphasis added)
The embolden portions of the above speeches are not pious platitudes. Rather they neatly encapsulate the importance of the roles performed by judges, barristers and solicitors. Her Majesty – and her predecessors since the late eighteenth century – championed those legal tenets.
Finally, while we may now mourn Her Majesty, barristers were in regal mourning long before her demise. Contrary to the “Queen Anne” theory, the barrister’s stuff gown was adopted as mourning dress, in 1685, by the royal court, including the bar, following the death of Charles II. Thus, the Bar “went into mourning at the death [of Charles II] and have remained so ever since!”6
The Queen is dead – and we salute her memory – and long live the rule of law Her Majesty championed.
1 meaning ‘during good behaviour’.
2 National Conference of Judicial Councils, 1944, California.
3 I am indebted to Daniel Yazdani, of the New South Wales Bar, who identified the speeches and ALJ reference below in a paper he gave in the Summer 2022 Edition of “Bar News – the Journal of the NSW Bar Association”, for references to same.
4 ‘Royal Visit: Queen pays tribute to judiciary’ (Canberra Times, 27 May 1980, p 10) https://trove.nla.gov.au/newspaper/article/110959519.
5 ‘The Queen on Judges and the Rule of Law’ (Courts and Tribunals Judiciary, 2 June 2022) https://www.judiciary.uk/guidance-andresources/the-queen-on-judges-and-the-rule-of-law/.
6 ‘The Demise of the Crown’ (1936) 9 Australian Law Journal 353 at 354; see generally, Prof JH Baker ‘History of Gowns worn at the English Bar’ (1975) 9 Costume 15.