Robert Verkaik: A royal farce that makes a mockery of the courts

The Queen's unprecedented legal action against the Daily Mirror in the Royal Courts of Justice on Thursday evening had all the ingredients of a Christmas pantomime. In her rage at the media's attempt to turn the House of Windsor into a laughing stock, the Queen asked one of her judges to stop a fake footman from revealing more details about her favourite television programmes and what she eats for breakfast.

But because the Queen is not allowed to use her own courts she had to call on the chambers of the Attorney General, located just over the road from Buckingham Palace, to bring the legal action in his name. The Attorney General then had to ask one of the country's leading Queen's Counsel to argue the case in front of the judge. Such a farce makes a mockery of the law. While the Queen retains the royal prerogative to appoint the judges and award Silk there will always be a perception of injustice whenever the monarch goes to court.

The trial of former royal butler Paul Burrell last year and the injunctions sought by a former servant of the Queen and Prince Charles, Michael Fawcett, have made it impossible for the monarchy to continue to claim the Queen has only a symbolic role in the courts. The time has come for the Queen to divorce herself from the civil and criminal justice systems.

Criminal cases should no longer be brought in the name of the Crown, and Parliament should make it clear that the Queen is not above the law. After the collapse of the Burrell trial, courtiers argued that such a unique set of events could never be repeated and there was therefore no need to examine the Queen's constitutional relationship with the courts.

But it is easy to imagine a situation where the Queen might be the only witness to a serious criminal act, perhaps an attempted assassination. Could the Crown Prosecution Service call her to testify in court? There is not a lawyer in the land who can categorically answer this question. Even the former Director of Public Prosecutions, Sir David Calvert-Smith QC, says that such an issue will need to be clarified by the House of Lords.

But the responsibility for ensuring that this country has a modern justice system lies with the Government. In June, ministers published proposals for a radical shake-up of the constitution. Downing Street had no qualms about abolishing the 1,400-year-old office of Lord Chancellor to effect a proper separation of powers between the executive and the judiciary. Proposals to create a new supreme court to replace the judicial committee of the House of Lords were also put forward.

There are also plans afoot to create a fairer, transparent system for choosing judges by abolishing the rank of Queen's Counsel and establishing a judicial appointments commission. But Lord Falconer, the Constitution Secretary and minister in charge of all these forward-looking reforms, has ignored all calls for any interference with the Queen's place in the justice system. Nor are the judges vexed about the appearance of injustice whenever the Queen uses the courts to pursue her own interests.

In their response to the constitutional reforms proposed by the Government, the judges said an awful lot about the threat to the independence of the judiciary, but they remained silent on the relationship between the courts and the Queen. This is surprising, because in cases such as the Queen against the Daily Mirror it is the judge who comes off worst. No matter how persuasive the law is on the facts of the Queen's case, the public's perception is of an over-deferential judge ruling in favour of the monarch. The same was true in the trial of Paul Burrell when the case collapsed soon after it emerged that the Queen could have been a key witness for the defence.

Judges are not only appointed in the name of the Queen but they must also swear an oath of allegiance to the sovereign. The same is true of Queen's Counsel. There has never been a suggestion that our judges would ever give the benefit of the doubt to the monarch simply because they owe her a duty of allegiance. But if judges are concerned about protecting their independence, they cannot ignore the potential dangers posed by an increasingly litigious Royal Family.

The Mirror lawyers may already have in mind arguing such a point under the Human Rights Act 1998. Article 6 enshrines the right to a fair trial before an impartial tribunal and it easy to see how that right might be breached if one of the parties in the case is owed a duty of allegiance by the trial judge.

The reform of the monarch's role in the justice system is not a moot or academic issue. A number of distinguished lawyers have already put their names to a constitutional change in the law. Lord Richard, a former Labour leader of the Lords, has said the Commons public administration committee should examine the Queen's role as part of its inquiry into the royal prerogative.

And, in a lecture last year to the Oxford University's Law Society, David Pannick QC argued that it is "time to put aside deference" and to make the Queen compellable as a witness, as well as making her liable to being sued.

Most people will know Mr Pannick better as the barrister who came to the aid of the Queen on Thursday, when he was instructed by the Attorney General to seek an injunction against the Daily Mirror.

r.verkaik@independent.co.uk