<<

. 69
( 155 .)



>>

sider British government, although reference is made from time to time to gov-
ernment in the devolved administrations. This chapter mainly concerns the
institutions, personnel and structure of British government. In it, we consider
the constitutional positions of the Crown, the monarchy, the Prime Minister,
Cabinet and other ministers, and civil servants. In the next chapter we move on
to examine the various powers of British government, paying particular atten-
tion to the government™s various rule- and law-making powers.


1 The Crown
We saw in chapter 1 that constitutional thought and doctrine in the United
Kingdom have largely dispensed with the concept of the state. Instead of the
state we have the Crown, which serves as a central, organising principle of gov-
ernment. The Crown ˜personi¬es the executive government of the country™
346 British Government and the Constitution


(Diplock LJ in BBC v Johns [1965] Ch 32, 79): it is associated with the idea of
executive authority rather than with that of the common interest. The major
public powers are vested in the Crown or, more commonly, in ministers who,
in strict theory, are servants of the Crown.


Town Investments Ltd v Department of the Environment
[1978] AC 359 (HL)
The Secretary of State for the Environment, a minister of the Crown, had
acquired a leasehold interest in certain premises for use as o¬ce accommoda-
tion by civil servants employed not in his own but in other government depart-
ments. The question arose whether the premises were ˜occupied™ by their tenant
under a ˜business tenancy™ and were therefore subject to a rent freeze imposed
on such tenancies by statutory instrument. If the minister was the tenant, could
he be said to be in occupation of the premises? The House of Lords held that
it was the Crown, not the minister, that became the tenant of the premises,
and further that the Crown was in occupation for the purposes of a business
(the activity or business of government) carried on by it. The premises were
therefore occupied under a ˜business tenancy™.


Lord Diplock: . . . [I]t is not private law but public law that governs the relationships
between Her Majesty acting in her political capacity, the government departments among
which the work of Her Majesty™s government is distributed, the ministers of the Crown in
charge of the various departments and civil servants of all grades who are employed in
those departments. These relationships have in the course of centuries been transformed
with the continuous evolution of the constitution of this country from that of personal rule
by a feudal landowning monarch to the constitutional monarchy of today; but the vocab-
ulary used by lawyers in the field of public law has not kept pace with this evolution and
remains more apt to the constitutional realities of the Tudor or even the Norman monar-
chy than to the constitutional realities of the 20th century. To use as a metaphor the symbol
of royalty, ˜the Crown™, was no doubt a convenient way of denoting and distinguishing the
monarch when doing acts of government in his political capacity from the monarch when
doing private acts in his personal capacity, at a period when legislative and executive
powers were exercised by him in accordance with his own will. But to continue nowadays
to speak of ˜the Crown™ as doing legislative or executive acts of government, which, in
reality as distinct from legal fiction, are decided on and done by human beings other than
the Queen herself, involves risk of confusion. We very sensibly speak today of legislation
being made by Act of Parliament “ though the preamble to every statute still maintains
the fiction that the maker was Her Majesty and that the participation of the members of
the two Houses of Parliament had been restricted to advice and acquiescence. Where, as
in the instant case, we are concerned with the legal nature of the exercise of executive
powers of government, I believe that some of the more Athanasian-like features of the
347 Crown and government


debate in your Lordships™ House could have been eliminated if instead of speaking of ˜the
Crown™ we were to speak of ˜the government™ “ a term appropriate to embrace both col-
lectively and individually all of the ministers of the Crown and parliamentary secretaries
[junior ministers] under whose direction the administrative work of government is carried
on by the civil servants employed in the various government departments. It is through
them that the executive powers of Her Majesty™s government in the United Kingdom are
exercised, sometimes in the more important administrative matters in Her Majesty™s name,
but most often under their own official designation. Executive acts of government that are
done by any of them are acts done by ˜the Crown™ in the fictional sense in which that
expression is now used in English public law.
The executive acts of government with which the instant case is concerned are the accep-
tance of grants from lessors who are private subjects of the Queen of leasehold interests in
premises for use as government offices and the occupation of the premises by civil servants
employed in the work of various government departments. The leases were executed under
his official designation by the minister of the Crown in charge of the government depart-
ment to which, for administrative and accounting purposes, there is entrusted the responsi-
bility for acquiring and managing accommodation for civil servants employed in other
government departments as well as that of which the minister himself is the official head.
In my opinion, the tenant was the government acting through its appropriate member or,
expressed in the term of art in public law, the tenant was the Crown.


Lord Diplock™s analysis is open to criticism in so far as it holds that executive
acts done by ministers are necessarily to be considered as acts done by the
Crown. (See Sir William Wade in Maurice Sunkin and Sebastian Payne (eds),
The Nature of the Crown (1999), pp 23“6 and compare the analysis by Martin
Loughlin in chapter 3 of the same work.) Ministers are commonly themselves
invested by statute with powers or duties and are then legally answerable for any
excess or improper exercise of such powers or failure of duty and cannot shelter
behind immunities of the Crown. This principle was authoritatively con¬rmed
in M v Home Of¬ce [1994] 1 AC 377 (above, p 89).
Notwithstanding its continuing formal centrality, the constitutional concept
of the Crown has su¬ered a substantial decay. The original or inherent powers
of the Crown embraced in the royal prerogative, although still signi¬cant
(see below) have been greatly reduced in extent by the intervention of statute.
Individual ministers (or ˜the Secretary of State™: see below, p 367), rather than
the Crown itself, are normally the recipients of statutory powers. From the
viewpoint of political science, if not of law, the concept of the Crown distorts
reality in representing the di¬erent elements of the executive as a uni¬ed
whole, concealing their interrelationships “ for example, the con¬‚icts and
accommodations that take place between the Prime Minister and other minis-
ters, the Treasury and the spending departments, ministers and civil servants,
departments and their associated public bodies, irregular or special advisers
348 British Government and the Constitution


and established civil servants, and so on. As Rodney Barker observed (in
R Borthwick and J Spence (eds), British Politics in Perspective (1984), p 5):

Constitutional theory is concerned to determine coherent principles, and as such the notion
of the crown has a limited use since it cannot be employed over a wide range of constitu-
tional behaviour without losing precisely that coherence, and referring to powers which are
separate, conflicting or independent of one another.

Lord Simon of Glaisdale™s characterisation of the Crown, in Town Investments
(above), as a corporation aggregate “ a corporation composed of many
persons “ headed by the Queen, seems to capture the complex and fragmented
nature of central executive power in the United Kingdom, but Lord Diplock™s
designation of the Crown, in the same case, as a corporation sole is generally
followed. As a corporation the Crown has an inherent legal capacity, for
instance, to enter into contracts. All ministers are in law ˜servants of the Crown™
(or of the Queen); civil servants work under the direction of ministers but are
themselves also servants of the Crown, not of the departmental minister. (See
Bainbridge v Postmaster-General [1906] 1 KB 178.) In Robertson v Minister of
Pensions [1949] 1 KB 227 the appellant was assured by an o¬cial of the War
O¬ce that a disability from which he su¬ered had been accepted as attributable
to military service, so entitling him to certain disablement bene¬ts. Later the
Minister of Pensions decided that the appellant™s disability was not attributable
to war service. The court (Denning J) held that the assurance given by the War
O¬ce was legally binding, and since the War O¬ce was the agent of the Crown,
it was binding on the Crown and therefore bound the Minister of Pensions, who
was also only a servant or agent of the Crown. (Cf R v W [1998] STC 550.)
In the larger realm of the Commonwealth, however, the Crown is divisible
and the Queen™s government is a separate legal entity in each of the territories
still owing allegiance to the Crown: see R v Secretary of State for Foreign and
Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892;
R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs
[2005] UKHL 57; [2006] 1 AC 529.
See generally M Sunkin and S Payne (eds), The Nature of the Crown (1999);
N Johnson, Reshaping the British Constitution (2004), ch 4; McLean, ˜The
Crown in contract and administrative law™ (2004) 24 OJLS 129.


(a) Privileges and immunities of the Crown
In a vivid aphorism, Walter Bagehot remarked of the England of Queen Victoria
that ˜A Republic has insinuated itself beneath the folds of a Monarchy™ (The
English Constitution (Fontana edn 1963), p 94). Modern governments, having
assumed the attributes of the Crown, are invested with most of those common
law powers, privileges and immunities that formerly constituted the ˜royal™ pre-
rogative, but of which relatively few are now exercised or enjoyed by the Queen
349 Crown and government


in her own person. Some of these are necessary governmental powers which, if
they did not belong to the government as part of the prerogative, would have to
be provided by statute: indeed statute might be a better ground for the
de¬nition and regulation of such powers. (On the powers of government see
chapter 7.) The prerogative also includes, however, certain privileges and
immunities which, as the legacy of a former royal pre-eminence, may lack
justi¬cation in a modern democratic state.
The Crown may be able to avoid liability under a statute that is not expressed
as being applicable to it, by virtue of a principle commonly, although mislead-
ingly, described as ˜Crown immunity™. In e¬ect the principle functions as a rule
of construction or a presumption (one that is rebuttable) that the Crown is not
bound by statute. It is preserved by section 40(2)(f) of the Crown Proceedings
Act 1947, which provides that nothing in the Act shall ˜a¬ect any rules of evi-
dence or any presumption relating to the extent to which the Crown is bound
by any Act of Parliament™.


Madras Electric Supply Corpn Ltd v Boarland [1955] AC 667 (HL)
In this case the liability of the appellant company to income tax was in issue, the
company having transferred its business to the Crown in the course of the year
of assessment. It was not disputed that the Crown itself was immune from the
taxing provisions of the relevant statute, but some of their Lordships found it
necessary, in dealing with the contentions of the parties, to consider the basis of
the Crown™s immunity.

Lord Macdermott: . . . Whatever ideas may once have prevailed on the subject, it is, in my
opinion, today impossible to uphold the view that the Crown can find in the prerogative an
immunity from tax if the statute in question, according to its true construction, includes the
Crown amongst those made liable to the tax it imposes. The appropriate rule, as I under-
stand it, is that in an Act of Parliament general words shall not bind the Crown to its preju-
dice unless by express provision or necessary implication.

Lord Reid: . . . I do not think that it has ever been suggested, at least since 1688, that, if an
Act in its terms and on its true construction applies to the Crown, its operation can be pre-
vented by the royal prerogative. It is true that there does not appear to be in the authorities
any statement which precisely negatives this argument, but that is not surprising. As the
point has never been raised it has not been necessary to formulate the answer to it.
Chitty states the rule as follows: ˜But Acts of Parliament which would divest or abridge the
King of his prerogatives, his interests or his remedies, in the slightest degree, do not in general
extend to, or bind the King, unless there be express words to that effect.™ (Prerogatives of
the Crown, [1820], p 383.) I draw attention to the words ˜extend to, or bind the King™. It is
not a matter of the King preventing the operation of an Act which extends to the Crown, but
of the scope of provisions which prejudice the Crown being so limited that they never extend
to the Crown.
350 British Government and the Constitution


Dicta of Lord Keith of Avonholm in this case found the basis of the rule in a pre-
rogative power of the Crown to override statutory words that were capable of
applying to it, but this is no longer a tenable view of the matter.
In Province of Bombay v Municipal Corporation of the City of Bombay (below),
a stringent test was applied in deciding whether a statute was e¬ective to bind
the Crown. The Privy Council held that the Crown would be bound only if
made subject to the Act by express words or necessary implication, and placed
a strict interpretation upon the latter alternative.


Province of Bombay v Municipal Corpn of the City of Bombay [1947]
AC 58 (PC)
The City of Bombay Municipal Act 1888 gave power to the Bombay Municipality
to carry water-mains ˜into, through or under any land whatsoever within the
city™. The municipality wished to lay a water-main in certain Crown land within
the city, but its right to do so was contested by the Crown. The High Court of
Bombay was satis¬ed that the Act could not operate with reasonable e¬ciency
unless it applied to Crown land, and accordingly held that it must be taken to bind
the Crown by necessary implication. This decision was reversed by the Privy
Council. The judgment of the Board was delivered by Lord du Parcq.

Lord du Parcq: . . . The maxim of the law in early times was that no statute bound the Crown
unless the Crown was expressly named therein, ˜Roy n™est lie par ascun statute si il ne soit
expressement nosme™. But the rule so laid down is subject to at least one exception. The
Crown may be bound, as has often been said, ˜by necessary implication™. If, that is to say, it
is manifest from the very terms of the statute, that it was the intention of the legislature
that the Crown should be bound, then the result is the same as if the Crown had been
expressly named. It must then be inferred that the Crown, by assenting to the law, agreed
to be bound by its provisions. . . . [T]heir Lordships are of opinion that to interpret the prin-
ciple in the sense put on it by the High Court would be to whittle it down, and they cannot
find any authority which gives support to such an interpretation.
It was contended on behalf of the [municipality] that whenever a statute is enacted ˜for
the public good™ the Crown, though not expressly named, must be held to be bound by its
provisions and that, as the Act in question was manifestly intended to secure the public
welfare, it must bind the Crown. . . . The proposition which the [municipality] thus sought to
maintain is supported by early authority . . . but in their Lordships™ opinion it cannot now be
regarded as sound except in a strictly limited sense. Every statute must be supposed to be
˜for the public good™, at least in intention, and even when, as in the present case, it is appar-
ent that one object of the legislature is to promote the welfare and convenience of a large
body of the King™s subjects by giving extensive powers to a local authority, it cannot be said,
consistently with the decided cases, that the Crown is necessarily bound by the enactment.
. . . Their Lordships prefer to say that the apparent purpose of the statute is one element,
and may be an important element, to be considered when an intention to bind the Crown
351 Crown and government


is alleged. If it can be affirmed that, at the time when the statute was passed and received
the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly
frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed
to be bound. Their Lordships will add that when the court is asked to draw this inference, it
must always be remembered that, if it be the intention of the legislature that the Crown
shall be bound, nothing is easier than to say so in plain words.


It was argued in Lord Advocate v Dumbarton District Council [1990] 2 AC 580
that the rule of construction that the Crown is not bound by statute, unless
named expressly or by necessary implication, applied only if the statute was one
which would, if binding on the Crown, prejudice or restrict its property, rights or
interests. This argument was accepted by the First Division of the Court of
Session (1988 SLT 546) but was controversially rejected by the House of Lords,
which declined to place any gloss on ˜the simple rule that the Crown is not bound
by any statutory provision unless there can somehow be gathered from the terms
of the relevant Act an intention to that e¬ect™ (per Lord Keith). (See further
Tomkins, ˜The Crown in Scots Law™, in A McHarg and T Mullen (eds), Public Law
in Scotland (2006) and compare the more ¬‚exible formulation of the rule by the
High Court of Australia in Bropho v State of Western Australia (1990) 171 CLR 1:
see Kneebone [1991] PL 361 and Berry (1993) 14 Stat LR 204.)

<<

. 69
( 155 .)



>>