The Crown

History

The concept of the Crown took form under the feudal system. 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 common socage: owners of land held as socage held it subject only to the crown. When such lands become ownerless, they are said to escheat; i.e. return to direct ownership of the Crown (Crown land). Bona vacantia is the royal prerogative by which unowned property, primarily unclaimed inheritances, becomes the property of the Crown.

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. The term the Crown then developed into a means by which to differentiate the monarch's official functions from his personal choices and actions. Even within medieval England, there was the doctrine of capacities separating the person of the king from his actions in the capacity of monarch.

The Crown was first defined as an 'imperial' crown during the reign of Henry VIII in the Ecclesiastical 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'. In William Blackstone's 1765 Commentaries on the Laws of England, he explained that "the meaning therefore of the legislature, when it uses these terms of empire and imperial, 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."

When the Kingdom of England merged with those of Scotland and Ireland, 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.

Functions

Executive government

The institution and powers of the Crown are formally vested in the king, but, conventionally, its functions are exercised in the sovereign's name by ministers of the Crown drawn from and responsible to the elected chamber of parliament.

The king or queen is the employer of all government officials and staff (including the viceroys, judges, members of the armed forces, police officers, and parliamentarians), the guardian of foster children (Crown wards), as well as the owner of all Crown land (public land or state land in other countries), buildings and equipment (Crown property), state-owned companies (Crown corporations or Crown entities), and the copyright for government publications (Crown copyright). 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 proper advice and consent of his or her relevant ministers. Should the monarch abdicate, all such property would remain with the Crown and come under the ownership of their successor.

Legislative

The concept of the Crown as a part of parliament is related to the idea of the fusion of powers, meaning that the executive branch and legislative branch of government are fused together. This is a key concept of the Westminster system of government, developed in England and used in countries in the Commonwealth of Nations and beyond. It is in contradistinction to the idea of the separation of powers.

In Commonwealth realms that are federations, 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 as Australian states or the Canadian provinces).

Justice

The King is the 'fountain of justice'. In criminal proceedings, the Crown is the prosecuting party (led by a Crown prosecutor, or Crown attorney in parts of Canada); the case is usually designated (in case citation) as R v [defendant], where R can stand for either rex (if the current monarch is male) or regina (if the monarch is female), and the v stands for versus. For example, a criminal case against Smith might be referred to as R 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) 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 in judicial review is brought by the Crown against a minister of the Crown on the application of a claimant. The titles of these cases now follow the pattern of R (on the application of [X]) v [Y], notated as R ([X]) v [Y], for short. Thus, R (Miller) v Secretary of State for Exiting the European Union is R (on the application of Miller and other) v Secretary of State for Exiting the European Union, where "Miller" is Gina Miller, a citizen. Until the end of the 20th century, such case titles used the pattern R v Secretary of State for Exiting the European Union, ex parte Miller. Either form may be abbreviated R (Miller) v Secretary of State for Exiting the European Union.

In Scotland, criminal prosecutions are undertaken by the Lord Advocate (or the relevant procurator fiscal) in the name of the Crown. Accordingly, the abbreviation HMA is used in the High Court of Justiciary for His/Her Majesty's Advocate, in place of rex or regina; as in, HMA v Al Megrahi and Fahima.

Most jurisdictions in Australia use R or The King (or The Queen) in criminal cases. If the Crown is the respondent to an appeal, the words The King will be spelled out, instead of using the abbreviation R (i.e. the case name at trial would be R v Smith; if the defendant appeals against the Crown, the case name would be Smith v The King). In Western Australia and Tasmania, 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 the director of public prosecutions. The Commonwealth 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 or Commonwealth 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 as our sovereign lord the king (or our sovereign lady the queen).

In reporting on court proceedings in New 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. Such crown 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 the Common Informers Act 1951 ended the practice of allowing such suits by common informers.

Divisibility of the Crown

Historically, the Crown was considered to be indivisible and the sovereign was advised only by their ministers in the United Kingdom. However, as the self-governing dominions of the British Commonwealth gained control over the exercise of the royal prerogative in the 1930s, this concept has evolved such that "the Crown in right of" each realm and territory acts independently of the other realms and territories.

The Balfour 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." The Statute of Westminster 1931, enshrined in law in the United Kingdom, Canada and Australia (though repealed in New Zealand under the Constitution Act 1986), recognised "a common allegiance to the Crown" in its preamble and established a constitutional 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. However, this unity of action was tested with the 1936 abdication of Edward VIII when the Irish 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. The convention was reaffirmed with respect to succession in the 2011 Perth Agreement, whereby the Commonwealth realms co-operated to end male-preference primogeniture, with the changes coming into force in unison in March 2015.

The historian Vernon 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. Legal scholar Noel Cox chronicled a transition from "unity of title, and unity of person" in 1931, to a division of responsibility among the realms by 1952, albeit with an expectation of uniformity concerning "matters of common concern, such as the succession to the throne". Cox views the relationship inversely to Bogdanor: the assent of each Commonwealth parliament would have effect within its own jurisdiction, and that absent mutual assent, the "Crown [is] potentially divisible in actuality as well as in law".

Canada

The preamble to the British 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". However, the judgement in Ex parte Indian Association of Alberta (EWCA, 1982) ruled that the obligations of the Crown towards the indigenous peoples in Canada were held by the Crown in right of Canada and not the Crown in right of the United Kingdom.

In Canada, one Crown acts separately in each of Canada's eleven governments (one federal and ten provincial). 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. As Eugene Forsey wrote in Crown 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, queen in all these provinces. But she is 'Queen of Canada,' and it is as such that she is queen in each of the provinces."

Australia

It is a matter of debate whether separate Crowns exist for each Australian state. When referring to the Crown in multiple jurisdictions, wording is typically akin to "the Crown in right of [place], and all its other capacities".

New Zealand

In New Zealand, the term "the Crown" is used to mostly mean the authority of government; its meaning changes in different contexts. In the context of considering the claims and settlements related to the Treaty of Waitangi, historian Alan Ward defines the Crown as "the people of New Zealand—including Māori themselves—acted through elected parliament and government."

Crown Dependencies

In the Bailiwick of Guernsey, legislation refers to "the Crown in Right of the Bailiwick of Guernsey" or "the Crown in Right of the Bailiwick" and the law officers of the Crown of Guernsey submitted that, "the Crown in this context ordinarily means the Crown in right of the république of the Bailiwick of Guernsey" 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".

In the Bailiwick of Jersey, statements by the law officers of the Crown define the Crown's operation in that jurisdiction as "the Crown in Right of Jersey", with all Crown land in the Bailiwick of Jersey belonging to the Crown in Right of Jersey and not to the Crown Estate of the United Kingdom. The Succession to the Crown (Jersey) Law 2013 defined the Crown, for the purposes of implementing the Perth Agreement in Jersey law, as the "Crown in Right of the Bailiwick of Jersey".

Legislation in the Isle 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.

British Overseas Territories

Following the decision of the Lords of Appeal in Ordinary in Ex parte Quark, 2005, it is held that the King, in exercising his authority over British Overseas Territories, does not act on the advice of the Cabinet 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. The Lords of Appeal wrote that "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."

Symbolism

The Crown is represented by the image of a crown in heraldry and other imagery such as cap badges, uniforms, government logos and elsewhere. The heraldic crown is chosen by the reigning monarch. From 1661 to the reign of Queen Victoria, an image of St Edward's Crown was used. The early part of Victoria's reign depicted the Imperial State Crown created for her coronation, while a Tudor Crown began to be used from the 1860s. In 1901, the Tudor Crown design was standardised and continued in use until the reign of Elizabeth II in 1952 when a heraldic St Edward's Crown was restored. In 2022, Charles III opted for a modified Tudor Crown design.

Under section 4 of the Trade Marks Act 1994, images of the royal crowns may not be used in a trade mark in the UK (or in a country which is party to the Paris Convention) without permission. Section 99 of the act also restricts business use of images of the crowns in a way which is calculated to give the impression that the user is an employee of, or a supplier to, the King or a member of the royal family. The Lord Chamberlain's Office governs the use of depictions of the royal crowns and also maintains a selection of images which may be used without infringement.

Crown forces

The term "Crown forces" has been used by Irish republicans and nationalists, including members of paramilitary groups, to refer to British security forces which have operated in Ireland. "Crown forces" was used by various iterations of the Irish Republican Army during conflicts such as Irish War of Independence (applied to the British Army, the Royal Irish Constabulary—regular, Black and Tans, and Auxiliary Division—and the Ulster Special Constabulary or USC) and the Troubles (applied to British Army units deployed from Great Britain, the local Ulster Defence Regiment, the Royal Ulster Constabulary and the USC). Due to the Irish War of Independence, "the phrase 'Crown Forces' came to represent something abhorrent in the Republican narrative". As noted by Irish republican Danny Morrison, "[t]he term 'security forces' suggests legitimacy, which is why republicans prefer terms like 'the Brits' or 'the Crown Forces', which undermines their authority."