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

Learning Outcomes

This article outlines the UK Crown’s legal and constitutional status for SQE1 candidates, including:

• analysis of the distinction between the Crown’s enduring legal persona and the changing personal identity of the monarch, and why this matters for liability and continuity of the state;
• explanation of how prerogative powers interact with parliamentary sovereignty, including when statute displaces or modifies prerogative authority;
• examination of key constitutional conventions governing the Crown, such as acting on ministerial advice, political neutrality, and the modern royal assent convention;
• coverage of the Crown’s role across the executive, legislature, and judiciary, linking this to the doctrine of separation of powers and practical checks and balances;
• identification of statutory and judicial limits on the Crown, focusing on leading cases, judicial review, and mechanisms of legal and political accountability;
• discussion of the evolution of prerogative powers and conventions under devolution, human rights law, and the UK’s relationship with the EU and international law;
• application of these principles to complex problem scenarios testing the scope, justiciability, and limits of prerogative powers and ministerial responsibility;
• evaluation of how major constitutional reforms and case law have reshaped the Crown’s contemporary constitutional functions and its relationship with Parliament and the courts.

SQE1 Syllabus

For SQE1, you are required to understand the constitutional status, powers, and conventions of the monarch and the Crown, with a focus on the following syllabus points:

• the distinction between the legal persona of the Crown (as a corporation sole) and the individual monarch
• the nature, sources, and significance of the royal prerogative and its limitation by statute and judicial review
• the relationship between prerogative powers and statutes, including parliamentary sovereignty and express/implied repeal
• the constitutional roles of the Crown in the executive, legislature, and judiciary, including the processes of appointment, dissolution, and assent
• the operation of constitutional conventions affecting the exercise of Crown powers, such as the appointment of ministers, granting of royal assent, and parliamentary accountability
• the impact of major constitutional legislation and case law upon the status and powers of the Crown
• mechanisms of legal and political accountability including separation of powers, judicial review, parliamentary scrutiny, and ministerial responsibility
• the implications of recent reforms including devolution, the Human Rights Act 1998, the Constitutional Reform Act 2005, the Succession to the Crown Act 2013, and adjustments following the UK's withdrawal from the EU

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the difference between the legal persona of the Crown and the individual monarch?
2. Name two areas where prerogative powers are still exercised by the Crown.
3. How can Parliament limit or abolish prerogative powers?
4. What is the constitutional convention regarding the monarch’s role in granting Royal Assent to legislation?
5. True or false? The courts can always review the exercise of prerogative powers.

Introduction

The Crown is a fundamental element of the UK's uncodified constitution. Legally, it is not identical to the reigning king or queen but is a permanent institution central to the state. The Crown acts as the representation of the state’s legal authority and sovereignty, symbolising the continuation of the nation and government. Understanding the Crown’s complex constitutional status is critical for legal professionals. It underpins the doctrines of parliamentary sovereignty, the separation of powers, and the rule of law. The nature, exercise, and limits of the Crown’s prerogative powers, the conventions that guide its role, and the way statute and judicial decisions have modernised, confined, or redefined its constitutional significance are all key parts of the legal system.

The Legal Persona of the Crown

The Crown is a corporation sole—an artificial legal body that enables the unbroken continuity of the state, no matter how frequently individual monarchs might change. As a corporation sole, “the Crown” refers to the enduring office of head of state, rather than any specific individual. This legal abstraction means that although the monarch (King Charles III, for example) is physically present, the actual legal powers and responsibilities of “the Crown” transcend the personal wishes of any sovereign.

Key Term: corporation sole
A legal entity that allows for continuity through successive holders of a single office; the Crown as a corporation sole ensures state power never lapses due to death, abdication, or incapacity.

This distinction is evident throughout the UK constitution. The Crown holds all land “of England”, the courts exercise justice “in the name of the Crown”, and criminal proceedings are brought by “the Crown” (R v Smith). The monarch as a person is immune from prosecution and cannot be sued or compelled to act, in contrast to ministers and the government who are legally accountable. The Crown also underpins the legal authority of the executive, legislature, and judiciary in England, Wales, Northern Ireland, and (to a large extent) Scotland.

The Crown’s persona thus provides for legal continuity of government. The monarch’s personal incapacity, abdication, or death does not disrupt the functioning of the state. Succession to the Crown is determined by statute, most recently amended by the Succession to the Crown Act 2013, which ended the system of male preference in line of succession and allowed for more open succession in light of changes in social attitudes (e.g., removal of many religious restrictions).

The Royal Prerogative: Scope and Limits

The royal prerogative comprises the collection of powers, rights, and privileges that are recognised as belonging to the Crown under common law. These include the powers historically exercised exclusively by the monarch but which today are predominantly exercised by ministers, in the name of the Crown, as a matter of constitutional convention. These prerogative powers exist alongside statutory powers, with their use governed by the rule of law, parliamentary sovereignty, and constitutional conventions.

Key Term: royal prerogative
The residue of legal powers left in the hands of the Crown—historically exercised by the monarch, but in practice now exercised by government ministers in the name of the Crown, and regulated by law, statute, or convention.

The extent of prerogative powers is not fixed by statute but found in case law and historical practice. New prerogatives cannot be created, and their scope is subject to judicial determination (see R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]; BBC v Johns [1965]). In practice, their exercise is now tightly controlled by constitutional conventions and can be overridden by statute.

Areas of Prerogative Power

The principal surviving prerogative powers are:

• Conducting foreign affairs, including the recognition of foreign states, the negotiation, signature, and ratification of international treaties;
• Declaring war and peace, deploying armed forces, and defence of the realm;
• Issuing and withdrawing passports and granting or revoking citizenship (in certain circumstances, where not otherwise governed by statute);
• Appointment and dismissal of the Prime Minister and other ministers of the Crown (formally by the monarch, on advice of ministers);
• Summoning, proroguing, and (following the Dissolution and Calling of Parliament Act 2022, once again) dissolving Parliament;
• Granting honours, titles, and orders of chivalry;
• Granting royal assent to legislation;
• Granting pardons and exercising the prerogative of mercy;
• Appointing judges and bishops (usually acting on the advice of elected officials).

While the monarch formally holds these powers, their day-to-day use, including significant constitutional matters such as the calling of elections or the conclusion of treaties, is undertaken by ministers on the monarch’s behalf and subject to political and legal accountability.

Statutory and Judicial Limits

The interface of statute and prerogative is governed by established principles:

• Where Parliament passes statutes covering areas previously under prerogative, the statute takes precedence: statute overrides prerogative (Attorney-General v De Keyser's Royal Hotel [1920]). The prerogative is displaced or placed “in abeyance” for as long as the statute is in effect.
• When a statute confers new powers or procedures, ministers must act under the statute, not the prerogative, to avoid circumventing parliamentary safeguards.
• If a statute is repealed, and unless Parliament expressly abolishes the prerogative, the prerogative may revive.
• Statutes may sometimes explicitly preserve, supplement, or abolish prerogative powers.

Key Term: parliamentary sovereignty
Parliament is the supreme legal authority in the UK—no person or body can override or set aside its legislation, and Parliament can make or unmake any law, including those affecting the Crown.

Key Term: judicial review
The judicial method for assessing the lawfulness of actions by public authorities, including (since the 1980s) some exercises of the royal prerogative, for example, for legality, rationality, or procedural unfairness.

Justiciability and Judicial Review

Historically, the exercise of prerogative powers was immune from judicial review (Gouriet v Union of Post Office Workers [1977]). This changed with the landmark decision in Council of Civil Service Unions v Minister for the Civil Service (“GCHQ case”) [1985], which established that the courts can review the exercise of prerogative powers, provided the subject matter is justiciable (capable of determination by the courts). Powers relating to “high policy” (such as foreign affairs, defence, or granting honours) remain non-justiciable, but other powers (such as passport refusals or civil service conditions) can now be the subject of judicial review.

In R (Miller) v The Prime Minister [2019], the UK Supreme Court confirmed the extent to which the court can intervene when the exercise of a prerogative frustrates the constitutional role of Parliament, holding unlawful the lengthy prorogation of Parliament in the context of Brexit. Miller No 2 clarifies that even exercises of royal prerogative can be subject to judicial scrutiny to protect key constitutional principles such as parliamentary sovereignty.

Overlap with Statutory Powers

Where prerogative and statute overlap (as in the provision of compensation for criminal injuries or the management of certain bodies), statute must come first. Further, government cannot use the prerogative to “frustrate the will of Parliament.” For example, in R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995], it was held unlawful for government to use the prerogative to bypass or ignore the terms of an unrepealed statute.

Worked Example 1.1

A government minister wishes to use prerogative powers to introduce a new compensation scheme for flood victims, even though no statute covers this area. Is this lawful?

Answer:
Yes. The government may act under prerogative powers to establish a non-statutory scheme in areas not covered by statute, but Parliament must authorise any necessary expenditure. However, should a statute later govern this area, the prerogative power cannot be exercised inconsistently with the statutory provisions—the statute would prevail.

Abolition, Preservation, and Reform

Parliament may abolish prerogative powers altogether, as it did with the monarch's personal power to dissolve Parliament, first through the Fixed-term Parliaments Act 2011, then reversing this by restoring prerogative dissolution in the Dissolution and Calling of Parliament Act 2022. Powers over the armed forces have also been reformed by statute (e.g., the Armed Forces Acts). In other cases, constitutional legislation has redefined or confined prerogative powers (see the Human Rights Act 1998, the Constitutional Reform Act 2005, and the Security Service Act 1989).

The Crown’s Role in State Institutions

The Crown underpins the authority of all three branches of state—executive, legislature, and judiciary—reflecting the doctrine of the separation of powers in a uniquely British context.

Executive

The executive government acts in the name of the Crown. Ministers exercise executive powers (including most prerogative powers) formally in the monarch’s name but in substance as representatives of the elected government. Decisions and policies are given legal effect as “Orders in Council” or “Orders of the Crown.” By convention, ministers are accountable to Parliament for the actions taken on behalf of the Crown—a principle known as individual and collective ministerial responsibility.

The monarch appoints (formally) the Prime Minister, who is the person most likely to command the confidence of the House of Commons. The monarch then appoints ministers on the advice of the Prime Minister and approves laws, regulations, treaties, and appointments as advised. The Prime Minister, Cabinet, and junior ministers take responsibility, including for any functions exercised personally by the monarch, and are accountable both legally and politically for the government’s actions.

Legislature

The Crown-in-Parliament refers to the monarch, the House of Lords, and the House of Commons collectively. Legislation becomes valid law after passing through both Houses and receiving Royal Assent from the monarch—though, by constitutional convention, refusal of Royal Assent is not contemplated in modern times, and the process is now a formality.

The Crown’s role in the legislature is evident in the formula for passing Acts of Parliament. The session of Parliament opens with the monarch’s speech outlining the government’s legislative programme, and only then can new business commence. Similarly, a dissolution of Parliament leads to a general election, triggered only by royal proclamation (now restored post-2022). Money Bills can only be introduced by ministers of the Crown, reflecting the necessary relationship between government finances and executive authority.

Judiciary

The judiciary derive their authority from the Crown, with all criminal prosecutions brought in its name (e.g., “R v Jones”). The Crown is also the legal enforcer of the courts' judgments, and the monarch is described as the "fount of justice." Judicial appointments, although made formally by the monarch, are practically made by or on the recommendation of ministers, reflecting conventions and statutory reforms (notably the Constitutional Reform Act 2005, which transferred the office of head of the judiciary to the Lord Chief Justice and established the Judicial Appointments Commission, ensuring judicial independence).

Key Term: separation of powers
The constitutional division of state functions into legislative, executive, and judicial branches to guard against excessive concentration of power; in the UK, these branches are formally separate but often interconnected, especially at the intersection with the Crown.

While the courts respect the principle of parliamentary sovereignty and the exclusive cognisance of each branch (e.g., non-interference with parliamentary procedures), they can judicially review executive actions, including use of prerogative powers where justiciable.

Constitutional Conventions and the Crown

Constitutional conventions are essential for the operation of the UK constitution—they guide and limit the use of the Crown's legal powers, even though they are not legally enforceable.

Key Term: constitutional convention
A non-legal rule or practice regarded as binding by those to whom it applies, which governs constitutional behaviour and fills the gaps in the formal legal framework.

Acting on Ministerial Advice

By well-established convention, the monarch is bound to act on the advice of government ministers—especially the Prime Minister. While legally the monarch holds certain discretionary powers, in practice, independent decision-making by the monarch has been almost entirely displaced. For example, the monarch must appoint as Prime Minister the person most likely to command a majority in the House of Commons. Attempts to exercise independent judgment are constitutionally unsupported and would provoke political crisis.

Ministers are collectively and individually responsible to Parliament, and the convention of ministerial responsibility ensures that the monarch remains removed from day-to-day political controversy.

Political Neutrality

The monarchy is constitutionally neutral and must not engage in political debate or exercise powers contrary to the advice of the government. Public confidence in the monarchy’s impartiality is viewed as necessary to the stability of the constitutional order.

Royal Assent

By convention, the monarch never refuses Royal Assent to Bills passed by Parliament, a practice in place since 1707. Thus, while legally Royal Assent is required for a Bill to become an Act, in reality, the monarch does not exercise any discretion.

Sewel Convention and Devolution

The Sewel Convention, adopted after devolution in the late 1990s, provides that the UK Parliament “will not normally” legislate for devolved matters without the consent of the relevant devolved legislature (Scotland, Wales, or Northern Ireland). However, as confirmed in R (Miller) v Secretary of State for Exiting the EU [2017], this convention, even when referenced in statute, does not create a legally enforceable obligation and does not limit Parliament’s sovereignty.

Worked Example 1.2

Parliament passes a controversial bill. The Prime Minister advises the monarch to grant Royal Assent, but the monarch personally disagrees with the bill. What should happen?

Answer:
By constitutional convention, the monarch must grant Royal Assent upon the advice of the Prime Minister, regardless of any personal view. Refusal would be unconstitutional, potentially provoking political crisis.

Collective and Individual Responsibility

Members of the government are expected to support collective decisions publicly (collective responsibility), and individual ministers must account to Parliament for exercise of powers on the Crown’s behalf. These conventions preserve democratic control and political accountability, reinforcing the doctrine that the monarch’s personal political opinions are irrelevant to the exercise of his or her public functions.

Recent Reforms and Judicial Developments

The status and roles of the Crown have continually changed, particularly in light of statutes, court decisions, and the UK’s changing relationship with the EU, human rights law, and devolution.

Dissolution of Parliament

The power to dissolve Parliament was originally a prerogative exercised on the advice of the Prime Minister, but was curtailed by the Fixed-term Parliaments Act 2011. The Dissolution and Calling of Parliament Act 2022 repealed the 2011 Act, restoring the Crown’s prerogative power to dissolve Parliament. It affirms the principle that the timing of general elections is for the government (through the monarch) to determine, although, in practice, only done on the Prime Minister’s request.

Succession to the Crown

The Succession to the Crown Act 2013 modernised and reformed the rules on succession, abolishing male-preference primogeniture for those born after 28 October 2011, and removed the bar on those who marry Roman Catholics from inheriting the throne. The Act preserved the requirement for the sovereign to be in communion with the Church of England.

Judicial Review of Prerogative Powers

The courts have asserted their authority to review certain exercises of prerogative (notably after CCSU v Minister for the Civil Service [1985]). In R (Miller) v The Prime Minister [2019] UKSC 41, the Supreme Court held that the prorogation of Parliament by the government was justiciable and, in this case, unlawful, because it frustrated the principles of parliamentary sovereignty and government accountability. Conversely, matters of “high policy” such as treaties, the deployment of armed forces, or the granting of honours, remain largely non-justiciable.

European Union and Human Rights

While a member of the European Union, the UK accepted the supremacy of EU law in areas governed by the treaties (R v Secretary of State for Transport, ex parte Factortame [1991]), but the European Union (Withdrawal) Act 2018 and related legislation ended the role of EU law as supreme, save for forms of retained EU law where Parliament allows it. The Human Rights Act 1998 continues to require that public authorities, including the executive, act compatibly with the European Convention on Human Rights, insofar as statutes permit.

Constitutional Reform and the Judiciary

The Constitutional Reform Act 2005 further changed the constitutional role of the Crown by transferring the office of head of the judiciary from the Lord Chancellor (an executive officer and Cabinet member) to the Lord Chief Justice, creating a clear institutional separation between the judiciary and the executive/legislature. The creation of the independent Supreme Court removed the judicial role from the House of Lords, symbolically and practically enhancing judicial independence within the constitutional structure.

Statutory Agencies and the Crown

Governance and oversight of security agencies (MI5, MI6, GCHQ, and others) has been placed on a statutory footing, with parliamentary and judicial oversight enhanced by legislation such as the Intelligence Services Act 1994 and the Investigatory Powers Act 2016. Although these agencies operate in the name of the Crown, their functions and conduct are now tightly regulated by statutory law and supervised by judicial and parliamentary commissioners.

Worked Example 1.3

A government minister purports to use the royal prerogative to withdraw from an international treaty that Parliament has implemented with a domestic statute, without consulting Parliament. Is this lawful?

Answer:
No. If withdrawal from a treaty would alter domestic law or remove statutory rights, as with the European Communities Act 1972, only Parliament can authorise such withdrawal (R (Miller) v Secretary of State for Exiting the EU [2017]). The government cannot use the prerogative to override or frustrate the intention of Parliament.

Exam Warning

It is essential to distinguish legal rules (which may be enforced by the courts) from constitutional conventions (which are not legally enforceable but may be politically binding and give rise to criticism for unconstitutional conduct). Courts may acknowledge the existence of conventions to understand how the constitution works in practice, but cannot enforce or override them. Always apply this distinction when assessing problem scenarios involving the powers of the monarch or Crown.

Summary

The Crown is a corporation sole that provides the institutional and constitutional continuity of the state. Its legal persona is distinct from the individual monarch, and the prerogative powers it possesses are now almost entirely exercised by government ministers—under the constraints of statutes, judicial oversight, and constitutional conventions. The Crown remains central to the UK’s constitutional structure, supporting the authority of the executive, legislature, and judiciary. The operation of the Crown is regulated by constitutional conventions, including acting on ministerial advice, maintaining political neutrality, and granting royal assent. Modern statutory reforms, judicial review, and landmark cases have significantly clarified, modernised, and limited the legal, political, and practical roles of the Crown, ensuring that the UK’s constitution functions according to democratic principles, the rule of law, and the separation of powers.

Key Point Checklist

This article has covered the following key knowledge points:

• The Crown is a legal entity and corporation sole, distinct from the person of the monarch, ensuring the state’s continuity and the effective operation of government.
• The royal prerogative constitutes the residual legal powers of the Crown. Most prerogative powers are now exercised by ministers as a matter of convention.
• The exercise of prerogative powers is limited and regulated by statute and judicial review; statutes override prerogative, and prerogative cannot be used to circumvent or frustrate statute.
• Parliament may abolish, limit, or define prerogative powers, with statutes always prevailing in the event of conflict.
• The authority of the Crown underpins all main state institutions—the executive, the legislature, and the judiciary—and is necessary to the separation of powers in the UK constitution.
• Constitutional conventions are essential in regulating how the Crown’s legal powers are exercised, even where legal rules are absent or ambiguous.
• The monarch acts on ministerial advice by convention, and does not refuse royal assent—political neutrality is strictly maintained.
• Key constitutional developments such as the Human Rights Act 1998, the Dissolution and Calling of Parliament Act 2022, the Succession to the Crown Act 2013, and changes in the law of judicial review have clarified and circumscribed the Crown’s constitutional role.
• Recent judicial decisions, such as R (Miller) v The Prime Minister [2019], provide safeguards against executive overreach in the use of prerogative powers, emphasising the role of the courts in protecting parliamentary sovereignty and constitutional principles.
• Devolution and other constitutional reforms recognise the continuing supremacy of Parliament, with conventions such as the Sewel Convention providing for political—but not legal—limits on central government action.
• Legal rules and constitutional conventions are distinct, with only the former being legally enforceable and the latter giving rise to political accountability and criticism for "unconstitutional" conduct.

Key Terms and Concepts

• corporation sole
• royal prerogative
• parliamentary sovereignty
• judicial review
• constitutional convention
• separation of powers