The monarch and the Crown - The Crown and its constitutional significance

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Overview

The Crown is central to the United Kingdom's constitutional framework, linking historical continuity with modern governance. For SQE1 FLK1 exam candidates, a clear understanding of the Crown's responsibilities is essential. This article offers a thorough examination of the Crown's legal status, executive functions, and constitutional role, highlighting recent developments and their effects on the UK's political scene. By assessing the balance between tradition and modern governance, students will gain valuable knowledge about the Crown's ongoing relevance and impact on constitutional law.

The Legal Status of the Crown

The Crown, as a legal entity, transcends the individual monarch, representing the state in its executive capacity. This distinction is vital to its constitutional role and interactions with other government branches.

The Crown as a Corporation Sole

Legally, the Crown functions as a corporation sole, ensuring governance continues regardless of changes in the reigning monarch. This structure allows for a smooth transition of powers and responsibilities.

Example: In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court highlighted the difference between the Crown's prerogative powers and those established by statute, emphasizing the importance of recognizing the Crown as distinct from the monarch, especially in constitutional matters.

The Crown's Immunity and Limitations

Historically, the principle "the King can do no wrong" provided extensive legal immunities to the Crown. Modern developments, however, have substantially reduced these protections, aligning the Crown more closely with democratic ideals.

Key legislation: The Crown Proceedings Act 1947 significantly limited the Crown's immunity, allowing legal actions in contract and tort. This Act illustrates the changing nature of the Crown's legal status and its growing accountability to the public.

The Monarch's Constitutional Functions

As the living symbol of the Crown, the monarch holds a unique place within the UK's constitutional framework. While serving as Head of State, the monarch's powers are defined and limited by constitutional norms and conventions, ensuring neutrality and reinforcing parliamentary sovereignty.

Key Constitutional Functions

  1. Appointing the Prime Minister: After a general election, the monarch appoints the leader of the party with the most seats in the House of Commons as Prime Minister. Although rooted in tradition, this is an essential step in government formation.

  2. Granting Royal Assent: This act gives formal approval to legislation, making it law. Though largely ceremonial, it remains a critical part of the legislative process.

  3. Dissolving Parliament: On the Prime Minister's advice, the monarch can dissolve Parliament and trigger a general election, ensuring regular checks on the government's mandate.

The Royal Prerogative: Powers and Constraints

The royal prerogative includes residual powers, rights, and immunities traditionally vested in the Crown. While extensive in theory, these powers face significant limitations in modern governance.

Categories of Prerogative Powers

  1. Executive powers: Such as appointing ministers and dissolving Parliament.
  2. Foreign affairs: Involving treaty-making and diplomatic relations.
  3. Defence: Including command of the armed forces and declarations of war.
  4. Judicial powers: For example, the prerogative of mercy.

Constitutional Constraints on Prerogative Powers

Several constitutional mechanisms limit these powers:

  1. Parliamentary sovereignty: Parliament can legislate to limit or abolish prerogative powers.
  2. Ministerial advice: The monarch acts on ministers' advice, who are accountable to Parliament.
  3. Judicial review: Courts can review and define the extent of prerogative powers.

Case study: In R (Miller) v The Prime Minister [2019] UKSC 41, the Supreme Court ruled that prorogation was justiciable and the advice to prorogue was unlawful. This decision highlighted the courts' role in ensuring prerogative powers are legally constrained, reinforcing parliamentary sovereignty.

The Crown's Role in Constitutional Balance

The Crown helps maintain the balance among the executive, legislative, and judicial branches, essential for preserving the UK's checks and balances system.

The Crown and the Executive

While the monarch is the nominal executive head, effective power lies with the government. The Crown's role includes:

  1. Appointing the Prime Minister and ministers.
  2. Granting royal assent to legislation.
  3. Acting as a symbol of justice and honor.

Constitutional convention example: The monarch appoints as Prime Minister the person most likely to have the confidence of the House of Commons, usually the majority party leader. This ensures executive power aligns with democratic will while maintaining the Crown's symbolic authority.

The Crown and Parliament

The relationship between the Crown and Parliament includes both ceremonial and substantive elements:

  1. The State Opening of Parliament, marked by the monarch's speech.
  2. The royal assent process for legislation.
  3. The theoretical power to withhold assent (last used in 1708).

Legal significance: While the monarch's legislative role is mostly ceremonial, it reaffirms the constitutional principle that Parliament includes the Crown-in-Parliament, ensuring shared sovereignty between the monarch and elected officials.

Constitutional Conventions and the Crown

Constitutional conventions, although not legally binding, critically govern the Crown's role. These unwritten rules ensure the monarch acts in line with democratic principles and adapting norms.

Key Conventions Governing the Crown's Role

  1. The monarch acts on ministerial advice: Ensuring political decisions are made by elected officials.
  2. Royal assent is granted: Conventions dictate the monarch does not refuse assent to passed bills.
  3. Political neutrality: The monarch remains neutral, avoiding political involvement.

Example application: In a hung parliament, it is customary for the monarch to avoid political negotiations. The sitting Prime Minister stays in office until it's clear who can command the House of Commons' confidence, preserving the Crown's impartiality.

The Monarch's Symbolic Role

Beyond constitutional duties, the monarchy symbolizes national identity and balance. This role enhances public acceptance and ensures the continuity of constitutional monarchy amid political change.

International Dimension

In diplomacy, the monarch's neutral position promotes goodwill and supports international relations, extending the Crown's influence beyond governance. Through state visits, diplomatic receptions, and international events, the monarchy contributes to the UK's global presence and soft power.

Recent Developments and Legal Reforms

Recent legal cases and reforms have shaped the Crown's constitutional role, redefining its powers and responsibilities.

The Fixed-term Parliaments Act 2011 and Its Repeal

This Act temporarily removed the monarch's power to dissolve Parliament, stabilizing parliamentary terms. Its repeal by the Dissolution and Calling of Parliament Act 2022 restored this power, illustrating the flexible nature of constitutional reform.

Legal implications: The repeal reaffirmed the UK constitution's adaptability and the continuing importance of prerogative powers within a modern democracy.

Succession to the Crown Act 2013

This Act modernized royal succession rules, removing gender-based discrimination and the restriction on those married to Roman Catholics.

Constitutional significance: The Act demonstrates how ancient institutions like the monarchy adjust to reflect contemporary values, highlighting the Crown's ongoing relevance.

Conclusion

The Crown's role in UK governance is both complex and changing. Its lasting importance lies in balancing historical continuity with democratic principles. For SQE1 FLK1 exam candidates, understanding the intricacies of the Crown is essential, providing key knowledge about:

  1. Its legal status and responsibilities
  2. The shifting nature of prerogative powers
  3. The impact of constitutional conventions and recent reforms