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The Crown is a political concept used inCommonwealth realms, analogous to the concept ofthe state in legal systems influenced byRoman civil law.[1]
Englishcommon law never developed a concept of the state and left supreme executive power with the king.[1] The concept of the Crown as acorporation sole developed in theKingdom of England as a separation of the physical crown and property of the kingdom from the person and personal property of the monarch. It spread through English and laterBritish colonisation, becoming embedded in the legal lexicon of the Britishdominions. As the dominions gained control over theroyal prerogative in the 1930s, the concept evolved such that 'the Crownin right of' each realm and territory acts independently of the other realms and territories.[2]
Depending on the context used, it may refer to the entirety of the state, theexecutive government specifically (either of a realm or one of its provinces, states or territories) or only to themonarch and theirdirect representatives.[1] As a political concept, the Crown should not to be confused with any physicalcrown, such as those of theBritish regalia.[3]
The termthe Crown does not have a single definition. Legal scholars Maurice Sunkin and Sebastian Payne opined, "the nature of the Crown has been taken for granted, in part because it is fundamental and, in part, because many academics have no idea what the termthe Crown amounts to".[4]Nicholas Browne-Wilkinson theorised that the Crown is "an amorphous, abstract concept" and, thus, "impossible to define",[5] whileWilliam Wade stated the Crown "means simplythe Queen".[6]
Warren J. Newman described the Crown as "a useful and convenient means of conveying, in a word, the compendious formal, executive and administrative powers and apparatus attendant upon the modern constitutional and monarchical state."[7]
Lord Simon of Glaisdale stated:[8]
The crown as an object is a piece of jewelled headgear under guard at theTower of London. But it symbolizes the powers of government which were formerly wielded by the wearer of the crown ... The term "the Crown" is therefore used in constitutional law to denote the collection of such of those powers as remain extant (theroyal prerogative), together with such other powers as have been expressly conferred by statute on "the Crown".
Lord Diplock suggested the Crown means "the government [and] all of the ministers and parliamentary secretaries under whose direction the administrative work of the government is carried out by the civil servants employed in the various government departments."[5] This interpretation was supported by section 8 of thePensions (Colonial Service) Act 1887 (50 & 51 Vict. c. 13), which set the terms "permanent civil service of the state", "permanent civil service of Her Majesty" and "permanent civil service of the Crown" as having the same meaning.[9]
In each Commonwealth realm, the termthe Crown, at its broadest, means thegovernment or the polity known asthe state, while the sovereign in all realms is the livingembodiment of the state,[10] or symbolicpersonification of the Crown.[a][24] The body of the reigning sovereign thus holds two distinct personas in constant coexistence, an ancient theory of the "King's two bodies"—the body natural (subject to infirmity and death) and the body politic (which never dies).[25] The Crown and the sovereign are "conceptually divisible but legally indivisible [...] The office cannot exist without the office-holder".[b][27] This theory is the basis of the immediate succession of the new British monarch upon the death of his or her predecessor; whilst the body natural may have passed, the body politic lives on.
The termsthe Crown,[28]the Crown in Right of [jurisdiction],His Majesty the King in Right of [jurisdiction],[29] and similar, are all synonymous and the monarch'slegal personality is sometimes referred to simply as the relevant jurisdiction's name.[17][30] In countries using systems of government derived from Romancivil law, the state is the equivalent concept.[31] However, the termsthe sovereign ormonarch andthe Crown, though related, have different meanings:the Crown includes both the monarch and the government.
The Crown also represents the legal embodiment of executive,legislative, andjudicial governance. While the Crown's legal personality is usually regarded as acorporation sole,[32] it can, at least for some purposes, be described as acorporation aggregate headed by the monarch.[33][34]Frederic William Maitland argued the Crown is a corporation aggregate embracing the government and the "whole political community".[35] J.G. Allen preferred to view the Crown as a corporation sole; one office occupied by a single person, enduring "through generations of incumbents and, historically, lends coherence to a network of other institutions of a similar nature."[36] Canadian academic Philippe Lagassé found the crown "acts in various capacities, as such: crown-in-council (executive); crown-in-parliament (legislative); crown-in-court (judicial). It is also an artificial person and office as a corporation sole. At its most basic, "the Crown" is, in the UK and other Commonwealth realms, what in most other countries is 'the state'."[37]
The concept of the Crown took form under thefeudal system.[38] Though not used this way in all countries that had this system, in England, all rights and privileges were ultimately bestowed by the ruler. Land, for instance, was granted by the Crown to lords in exchange for feudal services and they, in turn, granted the land to lesser lords. One exception to this was commonsocage: owners of land held as socage held it subject only to the crown. When such lands become ownerless, they are said toescheat; i.e. return to direct ownership of the Crown (Crown land).Bona vacantia is theroyal prerogative by which unowned property, primarily unclaimed inheritances, becomes the property of the Crown.[c][39]
As such, the physical crown and the property belonging to successive monarchs in perpetuity came to be separated from the person of the monarch and his or her private property. After several centuries of the monarch personally exercising supreme legislative, executive, and judicial power, these functions decreased as parliaments, ministries, and courts grew through the 13th century.[40] The termthe Crown then developed into a means by which to differentiate the monarch's official functions from his personal choices and actions.[41] Even within medieval England, there was thedoctrine of capacities separating the person of the king from his actions in the capacity of monarch.[42]
The Crown was first defined as an 'imperial' crown during the reign ofHenry VIII in theEcclesiastical Appeals Act 1532 which declared that 'this realm of England is an empire ... governed by one Supreme Head and King having the dignity and royal estate of the imperial Crown of the same'.[43] InWilliam Blackstone's 1765Commentaries on the Laws of England, he explained that "the meaning therefore of the legislature, when it uses these terms ofempire andimperial, and applies them to the realm and crown of England, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire; and owes no kind of subjection to any other potentate on earth."[44]
When theKingdom of England merged with those ofScotland andIreland, the concept extended into the legal lexicons of the United Kingdom and its dependencies and overseas territories and, eventually, all of the independent Commonwealth realms.
The institution and powers of the Crown are formally vested in the king, but,conventionally, its functions are exercised in the sovereign's name byministers of the Crown[d] drawn from andresponsible to the elected chamber ofparliament.[45]
The king or queen is the employer of all government officials and staff (including theviceroys, judges, members of the armed forces, police officers, and parliamentarians),[e] the guardian of foster children (Crown wards), as well as the owner of allCrown land (public land orstate land in other countries), buildings and equipment (Crown property),[47] state-owned companies (Crown corporations orCrown entities),[48] and the copyright for government publications (Crown copyright).[49] This is all in his or her position as sovereign, not as an individual; all such property is held by the Crown in perpetuity and cannot be sold by the sovereign without the properadvice and consent of his or her relevant ministers. Should the monarchabdicate, all such property would remain with the Crown and come under the ownership of their successor.
The concept of the Crown as a part of parliament is related to the idea of thefusion of powers, meaning that theexecutive branch andlegislative branch of government are fused together. This is a key concept of theWestminster system of government, developed in England and used in countries in theCommonwealth of Nations and beyond. It is in contradistinction to the idea of theseparation of powers.
In Commonwealth realms that arefederations, the concept of the King in parliament applies within that specific parliament only, as each sub-national parliament is considered separate and distinct from each other and from the federal parliaments (such asAustralian states or theCanadian provinces).
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The King is the 'fountain of justice'. Incriminal proceedings, the Crown is the prosecuting party (led by aCrown prosecutor, orCrown attorney in parts of Canada); the case is usually designated (incase citation) asR v [defendant],[51] whereR can stand for eitherrex (if the current monarch is male) orregina (if the monarch is female), and thev stands forversus. For example, a criminal case against Smith might be referred to asR v Smith and verbally read as "the Crown against Smith".
The Crown is, in general,immune to prosecution and civil lawsuits. So,R is rarely (albeit sometimes[f]) seen on the right hand side of the 'v' in the first instance. To pursue a case against alleged unlawful activity by the government, a case injudicial review is brought by the Crown against aminister of the Crown on the application of aclaimant. The titles of these cases now follow the pattern ofR (on the application of [X]) v [Y], notated asR ([X]) v [Y], for short. Thus,R (Miller) v Secretary of State for Exiting the European Union isR (on the application of Miller and other) v Secretary of State for Exiting the European Union, where "Miller" isGina Miller, a citizen. Until the end of the 20th century, such case titles used the patternR v Secretary of State for Exiting the European Union,ex parte Miller. Either form may be abbreviatedR (Miller) v Secretary of State for Exiting the European Union.
InScotland, criminal prosecutions are undertaken by thelord advocate (or the relevantprocurator fiscal) in the name of the Crown. Accordingly, the abbreviationHMA is used in theHigh Court of Justiciary forHis/Her Majesty's Advocate, in place ofrex orregina; as in,HMA v Al Megrahi and Fahima.
Most jurisdictions inAustralia useR orThe King (orThe Queen) in criminal cases. If the Crown is the respondent to an appeal, the wordsThe King will be spelled out, instead of using the abbreviationR (i.e. the case name at trial would beR v Smith; if the defendant appeals against the Crown, the case name would beSmith v The King). InWestern Australia andTasmania, prosecutions will be brought in the name of the respective state instead of the Crown (e.g.The State of Western Australia v Smith).Victorian trials in the original jurisdiction will be brought in the name of thedirector of public prosecutions. TheCommonwealth director of public prosecutions may choose which name to bring the proceeding in. Judges usually refer to the prosecuting party as simply "the prosecution" in the text of judgments. In civil cases where the Crown is a party, it is a customary to list the body politic (e.g.State of Queensland orCommonwealth of Australia) or the appropriate government minister as the party, instead. When a case is announced in court, the clerk or bailiff may refer to the Crown orally asour sovereign lord the king (orour sovereign lady the queen).
In reporting on court proceedings inNew Zealand, news reports will refer to the prosecuting lawyer (often called a Crown prosecutor, as in Canada and the United Kingdom) as representing the Crown; usages such as, "for the Crown, Joe Bloggs argued", being common.
The Crown can also be a plaintiff or defendant in civil actions to which the government of the Commonwealth realm in question is a party. Suchcrown proceedings are often subject to specific rules and limitations, such as the enforcement of judgments against the Crown.Qui tam lawsuits on behalf of the Crown were once common, but have been unusual since theCommon Informers Act 1951 ended the practice of allowing such suits by common informers.
Historically, the Crown was considered to be indivisible and the sovereign was advised only by their ministers in the United Kingdom.[52] However, as the self governingdominions of the British Commonwealth gained control over the exercise of the royal prerogative in the 1930s, this concept has evolved such that 'the Crownin right of' each realm and territory acts independently of the other realms and territories.[2][57]
TheBalfour Declaration of 1926 recognised the dominions as 'autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.'[58] TheStatute of Westminster 1931, enshrined in law in the United Kingdom, Canada and Australia (though repealed in New Zealand under theConstitution Act 1986), recognised 'a common allegiance to the Crown' in itspreamble and established aconstitutional convention that 'any alteration in the law touching the Succession to the Throne or the Royal Style and Titles' would require the assent of each of the dominion parliaments as well as the UK Parliament.[2][59][g] However, this unity of action was tested with the 1936abdication of Edward VIII when theIrish Free State implemented the abdication a day later than the United Kingdom and the other dominions, creating a 24 hour divergence whereby Edward VIII was king in the Irish Free State and George VI was king elsewhere.[2]
The historianVernon Bogdanor has stated that it remains constitutionally inappropriate for the succession to the Crown to diverge, even as the Commonwealth realms have attained complete independence from the United Kingdom.[60] The constitutional conventions established in the Statute of Westminster which require uniformity in the laws of succession, along with a common format for the royal styles and titles, distinguish the Crown of the Commonwealth realms from apersonal union, under which there is no alignment between multiple thrones and different laws of succession may exist.[2] The convention was reaffirmed with the2013 changes to the law of succession, when the Commonwealth realms co-operated to endmale-preference primogeniture in unison in March 2015.[61]
The preamble to theBritish North America Act 1867 expressed the desire of the Canadian provinces to be united into one dominion 'under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom'.[62] However, the judgement inEx parte Indian Association of Alberta (EWCA, 1982) ruled that the obligations of the Crown towardsthe indigenous peoples in Canada were held by the Crown in right of Canada and not the Crown in right of the United Kingdom.[63]
In Canada, one Crown acts separately in each of Canada's eleven governments (one federal and ten provincial).[64] For example, when Crown land is transferred between the federal government and a province, it is the responsibility to manage the land that is being transferred; the Crown does not transfer ownership to itself.[65][66] AsEugene Forsey wrote inCrown and Cabinet, "the provinces are not themselves 'monarchies.' They are a part of a constitutional monarchy, Canada. The Queen is Queen of Canada, not Queen of Ontario, Queen of Quebec, Queen of British Columbia, etc. She is, of course, queenin all these provinces. But she is 'Queen of Canada,' and it is as such that she is queenin each of the provinces."[67]
It is a matter of debate whether separate Crowns exist for eachAustralian state.[68] When referring to the Crown in multiple jurisdictions, wording is typically akin to "the Crown in right of [place], and all its other capacities".[69]
In New Zealand, the termthe Crown is used to mostly mean the authority of government; its meaning changes in different contexts.[70][71] In the context of people considering theclaims and settlements related to the Treaty of Waitangi, professor of historyAlan Ward defines the Crown as "the people of New Zealand—includingMāori themselves—acted through elected parliament and government."[72]
In theBailiwick of Guernsey, legislation refers tothe Crown in Right of the Bailiwick of Guernsey[73] orthe Crown in Right of the Bailiwick[74] and the law officers of the Crown of Guernsey submitted that, "the Crown in this context ordinarily means the Crown in right of therépublique of the Bailiwick of Guernsey"[75] and that this comprises "the collective governmental and civic institutions, established by and under the authority of the monarch, for the governance of these islands, including the states of Guernsey and legislatures in the other islands, the royal court and other courts, the lieutenant governor, parish authorities, and the Crown acting in and through the Privy Council".[76]
In theBailiwick of Jersey, statements by thelaw officers of the Crown define the Crown's operation in that jurisdiction asthe Crown in Right of Jersey,[77] with all Crown land in the Bailiwick of Jersey belonging to the Crown in Right of Jersey and not to theCrown Estate of the United Kingdom.[78] The Succession to the Crown (Jersey) Law 2013 defined the Crown, for the purposes of implementing thePerth Agreement in Jersey law, as theCrown in Right of the Bailiwick of Jersey.[79]
Legislation in theIsle of Man also defines the Crown in Right of the Isle of Man as being separate from the Crown in Right of the United Kingdom.[80]
Following the decision of theLords of Appeal in Ordinary inEx parte Quark, 2005, it is held that the King, in exercising his authority overBritish Overseas Territories, does not act on the advice of theCabinet of the United Kingdom, but, in his role as king of each territory, with the exception of fulfilling the UK's international responsibilities for its territories. To comply with the court's decision, the territorial governors now act on the advice of each territory's executive and the UK government can no longer disallow legislation passed by territorial legislatures.[81] The Lords of Appeal wrote, "the Queen is as much the Queen of New South Wales and Mauritius and other territories acknowledging her as head of state as she is of England and Wales, Scotland, Northern Ireland, or the United Kingdom."[82]
The Crown is represented by the image of a crown inheraldry and other imagery such ascap badges, uniforms, government logos and elsewhere. The heraldic crown is chosen by the reigning monarch. From 1661 to the reign ofQueen Victoria, an image ofSt Edward's Crown was used.[83] The early part of Victoria's reign depicted the Imperial State Crowncreated for her coronation, while aTudor Crown began to be used from the 1860s.[83] In 1901, the Tudor Crown design was standardised and continued in use until the reign ofElizabeth II in 1952 when a heraldic St Edward's Crown was restored.[83][84] In 2022,Charles III opted for a modified Tudor Crown design.[85][86]
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Crown copyright appliesin perpetuity to depictions of theRoyal Arms and any of its constituent parts under theroyal prerogative, andThe National Archives restricts rights to reproduce them.[87][88] Although Crown Copyright usually expires 50 years after publication, Section 171(b) of theCopyright, Designs and Patents Act 1988 made an exception for 'any right or privilege of the Crown' not written in an act of parliament, thus preserving the rights of the Crown under the unwritten royal prerogative.[89]
In addition, use of images of the crowns for commercial purposes is specifically restricted in the UK (and in countries which are party to theParis Convention) under sections 4 and 99 of theTrade Marks Act 1994, and their use is governed by theLord Chamberlain's Office.[90][91][92] It is also an offence under Section 12 of theTrade Descriptions Act 1968 to give a false indication that any goods or services are supplied to the monarch or any member of the royal family.[93][92]
The term "Crown forces" has been used byIrish republicans andnationalists, including members ofparamilitary groups, to refer to Britishsecurity forces which operate inIreland. The term was used by various iterations of theIrish Republican Army (IRA) during conflicts such asIrish War of Independence andthe Troubles. As noted by Irish republicanDanny Morrison, "[t]he term 'security forces' suggestslegitimacy, which is why republicans prefer terms like 'the Brits' or 'the Crown Forces', which undermines their authority."[h][95] Due to the Irish War of Independence, "the phrase 'Crown Forces' came to represent something abhorrent in the Republican narrative".[96]
{{citation}}: CS1 maint: location missing publisher (link)...the Preamble sets out as the established constitutional position that any alteration of the law affecting the succession to the Throne shall thereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom. It is a constitutional convention and is not a statutory provision...
When public land is required by the federal government or one of its departments, or any provincial ministry, the land itself is not transferred. What is transferred is the responsibility to manage the lands on behalf of Her Majesty the Queen (HMQ). This is accomplished by an Order-in-Council or a Minister's Order that transfers management of land either from HMQ in right of Ontario to HMQ in right of Canada as represented by a department or to HMQ in right of Ontario as represented by another ministry. The Crown does not transfer ownership to itself.
The Royal Arms and its constituent parts are protected by perpetual Crown copyright, and may only be re-used by His Majesty the King, members of the Royal Family, government departments and official holders of the Royal Warrant.
Because of the events of the War of Independence, the phrase 'Crown Forces' came to represent something abhorrent in the Republican narrative.