1936 (His Majesty’s Declaration of Abdication Act 1936). By conven-

tion the consent to abdication is required from the independent

commonwealth countries of which the Queen is head of state. It is not

settled whether the monarch has the power to abdicate without an Act

of Parliament. Since monarchy is a status conferred by law and without

a voluntary act, the answer is probably not. The Crown’s titles are also

determined by statute (Royal Titles Act 1953).

When the monarch dies, the successor immediately and automati-

cally becomes monarch. A special Accession Council, composed mainly

of members of the House of Lords, proclaims this. The proclamation is

later confirmed by the Privy Council. Whether these bodies have a

power of veto is unclear. Certainly the subsequent coronation ceremony

has no legal significance being purely symbolic and theatrical. If the

monarch is a minor, ill or absent abroad, the royal functions are

exercised by a regent or councillors of state (see Regency Acts 1937–53).

In such cases certain bills cannot be assented to, most importantly a bill

for altering the succession to the Crown.

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13.2.2 Financing the monarchy

Even in her private capacity the Queen is exempt from taxes unless

statute specifically provides otherwise. The Queen has, however,

entered into a voluntary agreement to pay tax on current income and

personal capital. Many of the royal expenses are funded by government

departments, such as the upkeep of Crown buildings, travel and

entertaining political dignitaries. The basic expenses of the monarchy

and of those members of the royal family who perform what they

regard as public duties are funded from the Civil List. This is an

amount granted by Parliament at the beginning of each reign. It con-

sists of an annual payment that can be increased by statutory

instrument made by the Treasury subject to veto by the House of

Commons (Civil List Acts 1952–72).

13.2.3 The functions of the monarchy

Since 1688 the functions and personal powers of the monarchy have

gradually been reduced. The 1688 revolution left the monarch in charge

of running the executive but dependent upon Parliament for money

and lawmaking power. The monarch retained substantial personal

influence until the late nineteenth century, mainly through the power to

appoint ministers and to influence elections in the local constituencies.

Until after the reign of George V (1910–1934) monarchs occasionally

intervened in connection with ministerial appointments and policy

issues. The abdication of Edward VIII (1936) probably spelt the end of

any political role for the monarch. Moreover the office of prime

minister, which was originally that of chief minister, is now becoming

confused with that of head of state, thus putting the legitimacy of the

monarchy into question.

The modern functions of the monarchy can be outlined as follows:

1. To symbolise the nation, participating for this purpose in cere-

monies and public entertainments. It is often said that the popu-

larity and public acceptance of the monarchy is directly related to

the fact that the monarch has little political power and is primarily

an entertainer. It is not clear why a modern democracy requires

a personalised ‘leader’. There is a strong element of superstition

inherent in the notion of monarchy, hence the importance of the

link between the monarch and the Established Church.

2. To ‘advise, encourage and to warn’ (Bagehot, Crossman (ed), 1963,

p. 111). The monarch, supported by a private secretary has access

294 General Principles of Constitutional and Administrative Law

to all government documents and regularly meets the prime

minister. The monarch is entitled to express views in private to

the government but there is no convention as to the weight to be

given to them.

3. Certain formal acts. The monarch must normally accept the advice

of ministers. These include:

(i) assent to statutes. Today this function is usually performed on

the Queen’s behalf by a commission;

(ii) consents to Orders in Council;

(iii) appointments of ministers, ambassadors, bishops, judges, and

other officials;

(iv) royal proclamations, for example dissolving and summoning

Parliament or declaring a state of emergency;

(v) ratifying solemn treaties;

(vi) granting charters to universities, professional bodies, etc.

These bestow the seal of state approval and also incorporate

the body in question so that it can be treated as a separate

person in law;

(vii) awarding peerages, honours and medals. The Queen has cer-

tain personal powers in this respect.

13.2.4 Personal powers of the monarch

In a few cases it is believed that the monarch can and indeed must

exercise personal power. This is a matter of convention with little

precedent. There are internal cabinet office guidance documents on the

matter but the fact that unpublished sources have any weight at all is a

sad reflection on the culture of those who exercise power. The govern-

ing principle seems to be that the head of state is the ultimate guardian

of the constitution and must intervene where the normal machinery of

government has broken down. Important occasions calling for the

intervention of the monarchy are as follows:

. The appointment of a prime minister. The Queen must appoint the

person who can form a government with the support of the House

of Commons. This usually means the leader of the majority party as

determined by a general election. Nowadays each party elects its

leader. In the unlikely event of the electoral process not producing a

clear winner the existing prime minister must probably be permitted

to attempt to form a government. Failing that, the Queen should

summon the leader of the next largest party. If that fails there is

disagreement as to what should happen, and in particular as to

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The Crown

whether the monarch has any personal discretion. On one view the

Queen should attempt to find someone else capable of commanding

a majority, but it is not clear whom, if anyone, she should consult.

For example, should she consult the outgoing prime minister?

According to another view the Queen should automatically dissolve

Parliament causing another election. The guiding principle seems to

be that she must try to determine the electorate’s preference.

. The dismissal of a government and the dissolution of Parliament.

If a government is defeated on a vote of confidence in the House of

Commons but refuses to resign or to advise a dissolution the Queen

could probably dismiss the government. This has not happened in

Britain since 1783, but happened in Australia in 1975. In such a case

the opposition, if it could form a majority, could be placed in office

or the Queen could dissolve Parliament, thus putting the case to the

people through an election. It has been suggested that the Queen

could dismiss a government that violates a basic constitutional

principle, for example by proposing legislation to abolish elections.

In order to dissolve Parliament the Queen would require a meet-

ing of the Privy Council. It would therefore be convenient as a

temporary measure for her to appoint the Leader of the Opposition

as prime minister who would then formally advise her in favour of a

dissolution (see Adegbenro v. Akintola [1963] AC 614 at 631).

. Refusing a dissolution. This possibility arises because of the con-

vention that the prime minister may advise the monarch to dissolve

Parliament. The Queen might refuse a dissolution if the prime

minister is acting clearly unconstitutionally, for example if a prime

minister whose party lost a general election immediately requested a

second dissolution or where a prime minister falls personally foul of

his party. Unfortunately there are no clear-cut precedents. It is likely

that the Queen could refuse a dissolution only where there is a viable

alternative government and a general election would be harmful to

the national interest, although it seems difficult for anyone, let alone

the Queen, to make such a judgement. A dissolution has not been

refused in Britain this century but one was refused by the Governor-

General of Canada in 1926. The Governor-General’s decision was

later rejected by the electorate.

. The Queen might refuse a prime ministerial request to appoint peers

to the House of Lords where the reason for the request is to flood

the Lords with government supporters. The precedents (1832 and

1910–11) suggest that the monarch would have to agree to such a

request but only after a general election. This matter is therefore

closely connected with the power to dissolve Parliament.

296 General Principles of Constitutional and Administrative Law

. The royal assent. The monarch has not refused assent to legislation

since 1709. It appears to be a strong convention that royal assent

must always be given. However, the Queen might refuse royal assent

where the refusal is on the advice of the prime minister, for example

in the unlikely event of a private member’s bill being approved by

Parliament against the wishes of the government. Here two conven-

tions clash. It is submitted that the better view is that she must still

give assent because the will of Parliament has a higher constitutional

status than that of the executive.

13.3 Crown Immunities

The Crown has certain privileges in litigation. At common law no legal

action would lie against the Crown in respect of its property rights and

contracts, or in respect of injuries caused by the Crown (torts). Nor

was the Crown bound by Acts of Parliament. This obvious gap in the

rule of law was avoided by the Crown’s practice of voluntarily

submitting to the jurisdiction of the courts. In the case of actions

involving property and contract this was through a procedure called a

‘petition of right’. In the case of a tort, the individual Crown servant

who committed the tort could be made liable and, where it was not

clear who was responsible, the Crown would nominate a defendant,

for example where a visitor to military premises was accidentally

injured. In either case the Crown would pay the damages. Dicey did

not regard Crown immunity as seriously threatening the rule of law,

pointing out that the individual Crown servant could always be held

liable and that in practice the Crown would usually be willing to stand

behind its employees. This seems a little flimsy and indeed is counter to

the republican ethics according to which it is offensive to rely upon

voluntary forbearances.

The maxim that ‘the king can do no wrong’ is a common law

principle that goes beyond the procedural rule that the king cannot be

sued in his own courts. It means that wrongdoing or bad faith can-

not be attributed to the Crown. The monarch has no power to do or

authorise a wrong. For example, the Crown at common law could not

be liable for wrongs committed by its employees because unlawful acts

of its employees were necessarily committed without its authority. The

maxim has never prevented the courts from deciding whether a par-

ticular action falls within the lawful powers of the Crown. Invalid acts

are not the same as wrongful acts (see Dunlop v. Woollahra City

Council (1982)).

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13.3.1 The Crown Proceedings Act 1947

This Act was intended to make the Crown liable as if it were a private

person for breaches of contract, for the wrongs of its servants and for

injuries caused by defective Crown property, etc. Section 1 permits

action for breach of contact against the Crown; s. 2 permits action in

tort, but only where a private person would be liable in the same

circumstances. However, the Act still leaves the Crown with several

special privileges. The most important are as follows:

1. No court order can be enforced against the Crown, so that the plain-

tiff ’s right to damages depends upon the Crown voluntarily paying

up. Similarly no injunction lies against the Crown nor against a

Crown servant acting on behalf of the Crown (Crown Proceedings

Act 1947 s. 21). However, where a function is conferred by statute

on a minister directly, an injunction will lie and the protection of

the Crown cannot be claimed (M. v. Home Office (1993)).

2. In an action for breach of contract the Crown can plead ‘executive

necessity’. This means that it can refuse to comply with a contract

where it has an overriding power to take some action in the public

interest (see the Amphitrite Case (1921); Commissioners of Crown

Lands v. Page (1960)). It is unlikely that a court would challenge a

minister’s view of executive necessity, provided that a plausible justi-

fication is given. However, it is not correct to state that the Crown

cannot be bound by any contract that hinders its freedom of action,

since all contracts do this. There must either be some definite pre-

rogative power that overrides the contract, or the contract must con-

flict with a statutory duty. For example, governments cannot cancel

contracts without compensation merely because of policy changes.

3. In the case of action in tort the 1947 Act contains several restric-

tions. The main ones are as follows:

(i) The Crown is not liable for the acts of its ‘officers’ unless

the individual officer was appointed directly or indirectly by

the Crown and paid wholly from central government funds

(s. 2 (6)). (The term ‘officer’ includes all Crown servants and

ministers.)

(ii) The Crown is not in any circumstances liable for wrongs com-

mitted by ‘judicial’ officers (s. 2 (5)): that is, judges or members

of tribunals. A person exercising judicial functions also enjoys

considerable personal immunity (see Chapter 17).

(iii) Until 1987 a member of the armed forces who was injured

on duty by another member of the armed forces or while on

298 General Principles of Constitutional and Administrative Law

military property could not sue the Crown if the injury was

pensionable under military regulations (s. 10). This sometimes

caused injustice because it was irrelevant whether or not the

victim actually qualified for a pension. The Crown Proceedings

(Armed Forces) Act 1987 abolishes this rule but authorises the

Secretary of State to restore it in times of war or national

emergency (see below 15.4).

4. The Crown is not bound by an Act of Parliament unless it expressly

or by necessary implication binds the Crown. Necessary implication

is a strict notion. It is not sufficient to show that the Crown is likely

to cause unfairness and inconvenience or even that the exemption is

against the public interest (Lord Advocate v. Dumbarton District

Council (1990)). It has to be established that the statute would be

unworkable unless the Crown were bound (see Cooper v. Hawkins

(1904) – speed limit did not bind Crown). It is debatable whether

the Crown can take the benefit of statutes, even though it is not

bound by them. For example, the Crown can evict a tenant free

of statutory restrictions, but could the Crown as a tenant resist

eviction by a private landlord by relying on the same statutory

rights that it can ignore as a landlord?

5. The Queen cannot be prosecuted or sued in her personal capacity.

13.3.2 Act of State

The Crown is not liable for injuries caused in connection with bona

fide acts of government policy, provided that the action is authorised

or subsequently ratified by the Crown (for example, Nissan v. A-G

(1970) – British troops billeted in Cyprus hotel – not an Act of State);

Buron v. Denman (1848) – British naval officer setting fire to barracks

in West Africa in order to liberate slaves – Crown subsequently con-

firmed the action). The defence of Act of State is of little modern

significance, being largely a product of the days of imperial aggression.

Indeed when the Human Rights Act 1998 comes into force the defence

of Act of State may fall foul of Art. 6 of the ECHR – the right to a fair

trial (see Osman v. UK (1999); Chapter 15).

As it stands at present the defence of Act of State cannot apply within

the UK except against ‘enemy aliens’, that is, citizens of countries with

which we are formally at war (Johnstone v. Pedlar (1921) – US citizen

maltreated – Crown liable). This is because the Crown owes a duty to

protect everyone who is even temporarily on British soil. Indeed the

defence may not be available against a British subject anywhere in the

world. In Nissan’s case (above) the House of Lords expressed divided

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The Crown

views on the point. It is not whether this means any British passport

holder or a British citizen under the British Nationality Act 1981 or

includes citizens of dependent territories. The underlying principle is

that British subjects owe allegiance (loyalty) to the Crown, whether they

wish to or not, and therefore the Crown has a duty to protect them (see

also Walker v. Baird (1982)); Johnstone v. Pedlar (above)). On the other

hand it seems unfair to favour people with no substantial link with the

UK merely because they happen to hold British passports. As against

this, a person with a British passport, even one who has never visited

Britain, owes sufficient allegiance to the Crown to be hanged for treason

(see Joyce v. DPP (1946)).

It is sometimes said that there are two kinds of ‘Act of State’. One is

the defence mentioned above. The other consists of recognised kinds

of high-level policy acts directed at other countries: for example, mak-

ing treaties, declaring war, annexing or giving up territory, recognising

new governments or granting diplomatic immunity (see Diplomatic

Privileges Act 1964). All these are examples of sovereign powers with

which the courts will not interfere. British subjects along with others

may be incidentally affected by this kind of Act of State. For example,

in Cook v. Sprigg (1899) the Crown annexed Pondoland and refused to

honour railway concessions granted to British subjects by the former

government (see also West Rand Central Gold Mining Co. v. R. (1905)).

Indeed this kind of Act of State may affect rights in domestic law.

For example a formal declaration by the Crown as to the existence of a

state of war (R. v. Bottril ex parte Kuchenmeister (1947)), the recogni-

tion of a foreign government (Carl Zeiss Stiftung v. Rayner & Keeler

Ltd (No. 2) (1967)), the conferring of diplomatic immunity (Engelke v.

Musmann (1928); Mighell v. Sultan of Johore (1894)), or military needs

(Chandler v. DPP (1964)) would be conclusive declarations and not

challengeable in the courts. They might invalidate existing obligations

or prevent legal actions or create criminal liability.

13.4 The Royal Prerogative

The Royal Prerogative is the residue of special powers, rights and

immunities vested in the Crown under the common law. There is little

democratic control over officials claiming to act under the prerogative

since parliamentary approval is not required. Medieval legal theory

did not regard the Crown as either the source of law or as above the

law, but did confer special rights on the monarch. Some of these were

based upon the position of the monarch as chief landowner within the

300 General Principles of Constitutional and Administrative Law

feudal system. Others derived from the responsibility of the monarch

as the ‘fount of justice’ to keep the peace and to defend the realm.

Thus the most significant prerogative concerns declaring war and

deploying the armed forces. This duality may have corresponded to

the distinction drawn in seventeenth-century cases between the ‘ordi-

nary’ and the ‘absolute’ prerogatives, the latter being discretionary

powers vested in the king and arguably beyond the reach of the courts

(see Bates Case (1606)).

13.4.1 Historical sketch

During the sixteenth century, theories of absolute monarchy became

dominant in Europe, but were less influential in England. Neverthe-

less, absolutist theories – the intellectual fashion of the day – strength-

ened the Crown’s hand in asserting prerogative power. The Tudors

(1485–1603) governed successfully and without seriously antagonising

Parliament, through ‘prerogative courts’ including the notorious Star

Chamber. Much law was made by royal proclamation and it is con-

troversial as to when statute was regarded as necessary. A statute had

at that time the status of an authoritative court judgement concerned

with declaring rather than changing the law. Social regulation fell

within the prerogative; for example, a proclamation of 1546 closed

London brothels, and one of 1530 prohibited the publication of un-

authorised religious books. Another proclamation of 1530 required

‘vagabonds and beggars’ to be stripped and beaten. It could, however,

be argued that these exercises of power were not examples of true

lawmaking but concerned the enforcement of existing law.