The Supreme Court of the United Sates of America has handed down a remarkable 6:3 judgment on presidential immunity, and what is most remarkable about the opinion of the majority is what it does not mention.
The majority opinion by the Chief Justice John Roberts reads as an exposition, almost a celebration, of executive power and why it should not be checked by the irksome nuisance of criminal law. He does not even refer expressly to the concept of the rule of law, let alone engage with it.
The only explicit reference in the judgment to equality before the law comes in one of the dissenting opinions. The seven references to the “rule of law” similarly come only in the dissents. Roberts does make a fleeting reference to “a compelling public interest in fair and effective law enforcement” halfway through one paragraph, but he briskly then asserts that such competing consideration does not prevent any immunity.
If we were only to have the majority opinion, we would not know that the doctrine of the rule of law existed, let alone that it should regulate the potential criminal liability of the head of the executive branch.
This omission is a shame, and it indicates that the majority judgment is weak. A robust and confident judgment would take on the doctrine of equality of law and show why there would have to be an exception in this instance. But instead, it ignores the point, almost acting as if it is not there.
The weak and one-sided nature of the majority opinion in turn suggests that it is partisan and the result of motivated reasoning. Such allegations are often made with politically appointed judges, but they are not always true. A look at the reasoning in a judgment can often dispel any unease at the bias of a judge.
And a case can be made out for immunity of a president, just as a case can be made out for the immunity of an ambassador or a soldier on the field of battle. Such immunities can and do exist, and they can often be justified one way or another.
But in each case there is a balancing exercise. The scales of Lady Justice weigh the competing interests of the rule of law and the need for a particular immunity. And we watch with anxious scrutiny to see if an imbalance is avoided.
There is, however, no basis for an English lawyer to gloat, for the position set out in the American Supreme Court’s majority opinion is pretty much the position over here. The Crown here is also immune from criminal liability—or at least that is what our constitutional law textbooks tell us. The King can do no wrong.
In fact, the point never appears to have been litigated, at least in modern times. There was, of course, the trial of Charles I before a tribunal with all the trappings of a “High Court of Justice”. But as the eminent jurist EL Wisty would aver, they were the wrong trappings. And after the restoration of 1660, the collective legal memory pretended it had never happened.
What modern courts have done is chip away at the legal fictions that gave the government a broad immunity from suit. And in the significant 1993 case of M v Home Office, the courts separated the person of a minister from their office, holding that an injunction can lie against a minister even if no such order supposedly could be made against the Crown itself.
In respect of the person of the King or Queen, the nearest we seem to have got to testing the point was in 1911, when George V brought an action for criminal libel against Edward Mylias who had alleged the King was a bigamist. Mylias sought to make the King give evidence on the point, but the court refused the application. A similar situation almost arose more recently with the prosecution of the royal butler Paul Burrell.
Such cases are about whether the criminal courts could compel the person of the Crown to give evidence. Exercising jurisdiction over the Crown as a defendant would be one step further. But one can see how an English court would go about ensuring a king would not get away with a murder.
If it were in a position where the person of the monarch committed some unmentionable criminal act, one could see an English court making a similar distinction as in M v Home Office if the royal defendant sought to rely on their immunity as a defence.
And one can even imagine a United Kingdom Supreme Court ultimately making the same broad distinction at its US counterpart between official acts and unofficial acts. The UK Supreme Court has done so in respect of Crown immunity generally in the case of torture: torture is no part of the role of a head of state.
But one would also hope that a UK judgment as to the extent to which a king had personal immunity from criminal liability would be better reasoned and with more regard to the rule of law than the US Supreme Court’s disappointing effort this week. As it stands, the court merely set out why a president is now no different from a king.