In r. V. Preston [1993] 4 All er 638 at 663 Lord Mustill said ‘the

Crown is an ambiguous expression often used to denote those who

conduct prosecutions on behalf of the state but on other occasions

denoting the state as an indivisible entity’. In that case there was a

conflict between the Crown’s duty as prosecutor to disclose relevant

material to the defence and its wider security duties involving secret

surveillance.

There is not one Crown but many (R. v. Secretary of State for

Foreign and Commonwealth Affairs ex parte Alberta Indian Association

(1982)). Australia, New Zealand and Canada and several other former

UK territories recognise the Crown as their Head of State. The office

happens for historical reasons to be held by the Queen of the UK, but

In each case she has a separate title and responsibilities. This is prob-

ably not the case in relation to the few remaining UK dependent

territories. The Queen is also Head of the Commonwealth, a title of

symbolic importance which carries no legal powers, but probably still

has political significance. Indeed, a conflict could arise between the

Queen’s role as Head of the Commonwealth and her duty to accept

the advice of the British government. For example in the mid-1980s the

commonwealth, contrary to the wishes of the UK government, wanted

to ban sporting and trade links with South Africa because of apartheid.

The legal nature of the Crown is unclear. When speaking of the head

of state we refer to the Queen, but when speaking of the executive we

refer to the Crown. It may be that there is no legal significance in this

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291

The Crown

terminology. For example the Scotland Act 1998 refers to the execu-

tive power as vested in ‘Her Majesty’ (s. 52). However, the Crown in

its official capacity must be separated from the Queen since, under the

Crown Proceedings Act 1947, the Crown can be sued but not the Queen

in her personal capacity. The Crown is often said to be a corporation

sole (Maitland, 1901). A corporation sole is an office being a legal

entity separate from the individual who holds the office at any given

time and which therefore exists permanently, not being affected by the

death of the office holder. A bishop, for example, is a corporation sole.

An alternative view which accommodates the reality of modern

government is that the Crown is a corporation aggregate akin to a

company. In Town Investments Ltd v. Department of the Environment

(1977) the question arose whether an office lease taken by a minister

was vested in the minister or the Crown since in the latter case it would

benefit from Crown immunities from taxation. The House of Lords

held that the lease was vested in the Crown on the basis that a minister

was part of the Crown. Lord Diplock thought that the Crown was a

fiction describing the executive. Lord Simon of Glaisdale explained

(at 831) that the expression ‘the Crown’ symbolises the powers of

government that were formerly wielded by the wearer of the crown,

and reflects the historical development of the executive as that of

offices hived off from the royal household. He stated (at 833) that the

legal concept best fitted to the contemporary situation was to consider

the Crown as a corporation aggregate headed by the Queen and made

up of ‘the departments of state including ministers at their heads’. His

Lordship added two riders: ‘First the legal concept still does not cor-

respond to the political reality. The Queen does not command those

legally her servants. On the contrary she acts on the formally tendered

collective advice of the Cabinet’. Secondly, ‘when the Queen is referred

to by the symbolic title of ‘‘Her Majesty’’ it is the whole corporation

aggregate which is generally indicated. This distinction between ‘‘the

Queen’’ and ‘‘Her Majesty’’ reflects the ancient distinction between

‘‘the King’s two bodies’’, the ‘‘natural’’ and the ‘‘politic’’ ’ (see Duchy

of Lancaster Case (1567) 1 Plow 325 at 327). Sir Robert Armstrong, a

former Cabinet Secretary, said that ‘for all practical purposes, the

Crown is represented by the government of the day’ (see Hennessey,

1989, p. 346).

On the other hand, where statutory powers are conferred specifically

upon individual ministers as is normally the case, ministers have no

special immunity. In M. v. Home Office (1993), the Home Secretary

attempted to rely on Crown immunity in order to deport an immigrant

in defiance of a court order. The House of Lords held that he was

292 General Principles of Constitutional and Administrative Law

liable in his official capacity for contempt of court. In that case

Parliament had conferred the power in question directly upon the

Secretary of State, whereas in Town Investments the lease had been

made ‘for and on behalf of her majesty’. Similarly, while the Crown

itself retains certain immunities, a Crown servant who commits a legal

wrong is personally liable, thus vindicating the rule of law.

13.2 The Queen

13.2.1 Succession to the Crown

Under the 1688 settlement Parliament conferred on itself the power

to appoint the sovereign. The Act of Settlement 1701 provides that

the Crown is to be held by the direct descendants of Princess Sophia

(the grand-daughter of the deposed James II). The holder of the Crown

must be a Protestant and must not marry a Catholic. The rules of

descent are based upon the medieval law governing succession to

land. Preference is given to males over females and to the elder over

the younger. The land law rules required sisters to hold land equally

(co-parcenaries). However, in the case of the Crown the first-born

prevails (although the matter has not been litigated). Since the point of

these rules is that they are arbitrary, in the sense that personal merit

or public choice is irrelevant, we need not pursue them further. The

succession has been altered only once when Edward VIII abdicated in