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[Acts of Parliament - the constitutional position of the Crown]
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The Queen, The Crown, The Monarch, The Sovereign

The Queen (also referred to as the Crown or the sovereign, the Monarch or The Crown) holds her position through heredity; she is not elected. Queen Elizabeth was the eldest daughter of George VI, who had no sons, and she became Queen when her father died in 1952.

 

“The Crown” has three meanings
Firstly
, it is the headgear guarded by the Beefeaters in the Tower of London. It is worn by the monarch on state occasions as a badge of royal office, rank and power. Actually, there are several crowns and the one worn by the Queen at the State Opening of Parliament is the Imperial Crown, and an older Crown is used only for coronations.

Secondly, the “Crown” also means the Queen, the Interpretation Act 1889 says that references to the sovereign means the Crown.

Thirdly, the Crown refers to the government; the monarch as the head of a legal body, consisting of Ministers of the Crown, the members of ‘Her Majesty’s Government’.

The legal basis of the monarchy is from the fact that the monarchy has legally existed from before time immemorial. From the monarchy flowed the body of laws, principles, precedents, customs and conventions that we now call the constitution.  The courts and Parliament developed from the monarchy.

 

The Crown and government

The monarch may not reject the advice ministers give.  It is a “convention” that the monarch does not tell Ministers what to do. They are only servants and agents of the monarch in name only.

 

The Queen herself remains impartial and never makes any public comment about politics, but can "encourage and warn" the Prime Minister whom she meets once a week. The Queen personally is reputed to be well informed about political matters. (There have been 11 prime ministers during her reign).

 

What actually happens is that the monarch acts only on the advice of the Ministers. Walter Bagehot (19 century political commentator) reminded us that the Monarch has, "‘the right to be consulted, the right to encourage and the right to warn".
 

M v Home Office [1993] HL
The Home Secretary, a Minister of the Crown was held to be in contempt of court. The Home Secretary failed to comply with a court undertaking and not to deport a teacher who was applying for judicial review of a refusal to grant him political asylum.
 

Held: The minister had been personally guilty of contempt. The Crown and the Home Office could not be held liable for contempt. The ruling did not alter the position that Injunctions do not lie against the Crown.

 


Head of State
The Queen is the Head of State.  The Glorious Revolution of 1688 transferred power to make the sovereign a constitutional monarch, not an absolute monarch.

 

Roman Catholics are not allowed to become the sovereign because of the Act of Settlement 1700 and by the Bill of Rights 1689.

Ceremonial Role
The Queen performs many formal acts of government and in many social functions. This role is formal, ceremonial and ornamental.

Head of the Church

The monarch is also the head of the Church of England, known as the established church.

The sovereign is Head of the Commonwealth.
The Commonwealth is a very loose organisation of countries which were formerly under British rule. Some still acknowledge the Queen as the Head of State. A device started in 1950 to change the Commonwealth to republics.

The monarchy extends to a number of independent countries within the Commonwealth, e.g. Canada, Australia, New Zealand, but her role is performed by the Governor-General.

As Head of the Commonwealth, the monarch attends the regular meetings of Commonwealth Prime Ministers, she also broadcasts a Christmas message.

Head of the Armed services

The Queen is head of the armed services and officers hold the Queen’s Commission.

The Head of the Courts

The Queen is the "Fount of Justice" and as such is the head of the courts. But in the same way that she is denied access to the House of Commons, she does not enter a court when it is in session. She appoints judges. 

 

The courts are the Queen’s courts (“Her Majesty's Court Service” [from 2005]), judges are the Queen’s judges, and the Crown Prosecution Service brings prosecutions in the name of the Queen.  Tony Blair wanted to remove the word 'Crown' from the Crown Prosecution Service.

 

Senior barristers are Queen's Counsel.

 

Neither civil nor criminal proceedings can be taken against the Sovereign.  Even though she is exempt from the Law the Queen her activities are carried out strictly lawfully.
 

The "Prerogative"

The Constitutional Position of the Crown is by Convention. The monarch is the formal head of Government, and has powers known as the “Royal Prerogative”.

 

The Crown’s Personal Prerogative Powers include appointing the prime minister (contrary to popular opinion the prime minister is not automatically in post by virtue of an election), dissolution of Parliament and the Royal Assent to Bills.  Queen Anne in 1708 was the last monarch to refuse to consent to a Bill.


Ministerial Prerogative Powers. These are not exercised by the monarch but by ministers.  These include some of the most important functions of government, such as decisions on armed conflict and the conclusion of international treaties.  Over many years, such powers have come to be delegated by Sovereigns to Ministers, and they may be exercised without parliamentary approval or scrutiny.

 

Ministerial Prerogative has its origins in the historic absolute power of the monarch, which ended in the execution of Charles I.  Government Prerogative is used for example, for appointing senior officials, international affairs and emergencies.  The courts have said that they will not recognise any further claims for prerogatives in BBC v Johns [1975].

 

In practice government ministers by “Order in Council” exercise these powers. William Hague vividly described the Privy Council as “the cloak that covers” a variety of important activities.
 

The use of these powers has frequently been questioned, particularly the power of the Prime Minister to take the country to war without the need to consult anyone. Consultation into The Governance of Britain started in 2007, full details here http://www.justice.gov.uk/publications/governanceofbritain.htm.


In 2004, the House of Commons Public Administration Select Committee produced a report called Taming the Prerogative: Strengthening Ministerial Accountability to Parliament.
 

The report concludes:

"While recognising that such powers are necessary for effective administration, especially in times of national emergency, the Report considers whether they should be subject to more systematic parliamentary oversight. It examines the arguments for scrutiny of some of the most significant prerogative powers, and concludes that the case for reform is unanswerable."

Opens and Prorogues Parliament

The Queen summons the two Houses of Parliament, prorogues (ends a session of Parliament) and dissolves Parliament in order that an election may be held, using the Royal Prerogative. Otherwise, the Crown for practical day to day purposes powerless, except for personal gifts such as honours.

 

The expression "The Queen in Parliament", oddly, means the Commons, Lords and The Crown acting together.
 

Footnote

The Blair government showed an indifference to the constitutional role of The Crown, frequently undermining the Queen's position.  There are many examples of lack of respect in the book THE TRIUMPH OF THE POLITICAL CLASS by Peter Oborne; some examples are reproduced here.

 

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