44 • The invisible palace —part 2 the constitution

and your oath is taken: and certainly, Sir, the bond is reciprocal... the one tie, the one bond, is the protection that is due from the sovereign ... Sir, if this bond is broken, farewell sovereignty¹.*

Charles remained steadfast to his challenge to the court's authority throughout the trial, but he was convicted and beheaded. Eleven years later, when his son Charles II ascended the throne, a number of those involved in the trial, including eleven of the 'Regicides' who had signed his death warrant, were condemned and executed. Cromwell and Bradshaw were already dead, but that did not deter the new regime. Their bodies were exhumed from their honoured tombs in Westminster Abbey and executed for trea­son. They were first hanged in chains; then their heads were stuck on poles on one of the Hall's towers. This macabre revenge may have been in keeping with the times, but nothing could undo the fact that Charles's trial had brought to an end in the most dramatic way possible the idea that the monarch was above the law.

George II (reigned 1729-60) was a king who had a good understanding of the power of the executive when he complained that 'Ministers are Kings in this country'. At the beginning of George's reign, the French writer and philosopher Francois Arouet, who assumed the name Voltaire, was in England. He had fled from Paris in 1726 after his release from imprisonment in the Bastille. Nearly three hundred years ago Voltaire was quick to perceive the nature of English constitutional government, and to stress its advantages over the absolute monarchy of France, where the king was all-powerful. In his Letters on the English he remarked upon the wisdom of the British system 'which leaves the King all-powerful to do good, but ties his hands if he tries to do evil' and he praised the House of Commons, which 'though second in rank, is the first in influence'.

• In Figure 4.1 the Queen is seen above the judges. Does this mean that she is above the law, and can do whatever she likes without fear of the courts? Some constitutional lawyers would argue that this is still the position— that the Crown still enjoys the 'prerogative of perfection', which means that the 'Queen can do no wrong', and that any blameworthy act by her must be imputed to her advisers. They would argue that legislation does not normally bind the Crown, who as the Head of State enjoys immunity from prosecution. Others would say that the answer was given in 1608 by Sir Edward Coke who, as Chief Justice of the Common Pleas, and when face to face with King James I, met James's claim that 'The King is the Law speaking' with the brave retort 'The King is under God and the Law!' and it was repeated by Thomas Fuller, chaplain in the reigns of Charles I and Charles II: 'Be you never so high, the law is above you'. They would recall Charles I's execution. Therefore, although the matter would no doubt be hotly debated by constitutional lawyers, and would surely be

THE INVISIBLE PALACE —PART 2 THE CONSTITUTION • 45

the subject of much learned argument, it is interesting to reflect that if, having been investigated by Her Majesty's Constabulary and the Crown Prosecution Service, Her Majesty the Queen was charged with committing a crime, she would have to be prosecuted In the name of the Queen, in one of the Queen's courts by one of Her Majesty's counsel learned in the law (Queen's Counsel). She would be tried by one of Her Majesty's judges and, if convicted, might be sentenced to a term in one of Her Majesty's prisons!

Perhaps we need not worry that she would spend much time there, for to continue our wild constitutional imaginings, as the sovereign is 'the fountain of justice and of mercy', as soon as sentence was pronounced Her Majesty would be able to grant herself a Royal Pardon, and the whole sorry business would be at an end.

The British Constitution, as it is known, may be complicated; it may be unwritten; it may even be something of an illusion made up of myths and theories, customs and traditions—a magnificent 'magic trick', with the Crown having every appearance of enormous power and influence, but in reality having very little, except for the appearance. The Queen may not be above the law, but that presents no problem for constitutional lawyers, for who could contemplate Her Majesty breaking the law? Anyone would know this could not happen: it is unthinkable, and if it is unthinkable, the thought need not shatter the illusion. Or need it? In 2002 the illusion came perilously close to being shattered, not when the Queen was in danger of being prosecuted, but when she was at risk of being called as a witness in a criminal trial.

The Queen has a special relationship with the courts. They are essentially 'hers', in the sense that justice is done in her name—hence the description the Royal Courts of Justice. The ancient legal principle that the monarch cannot be compelled to give evidence in his or her own courts stems from the constitutional theory that as the monarch is the highest authority in the land, there is therefore no higher authority than the monarch to issue an order requiring her to attend court. Until 2002 this has never been a problem, simply because there never was a time when the interests of justice required the monarch to appear in court, but this question loomed large during the dramatic trial of Paul Burrell, butler to Diana, the late Princess of Wales.

The trial of Paul Burrell

Between 1992 and her death in 1997 Paul Burrell had been butler to Diana, Princess of Wales. In October 2002 he stood trial at the Old Bailey charged with the theft of over 300 items associated with her, many of which had been taken into his possession after her death. His defence to the charge was that he had merely taken them for safe-keeping. After several days the trial came to an abrupt end, when the Queen herself revealed that