. 70
( 155 .)


The Crown™s (quali¬ed) immunity from statute has enabled Crown bodies
to escape the operation of social welfare and other legislation enacted in the
public interest. Indeed some statutes make express provision for the Crown™s
immunity, in whole or in part; for example, section 13 of the Rent Act 1977
provides that tenants of the Crown shall not, in general, qualify as protected
tenants under the Act, and section 191 of the Employment Rights Act 1996
excludes persons in Crown employment from the Act™s provisions on redun-
dancy payments.
Various means have been adopted for securing conformity by Crown bodies
and activities with general standards and requirements imposed by statute. While
the Crown long enjoyed immunity from statutory planning controls (an immu-
nity continued by the Town and Country Planning Act 1990) and accordingly
was not required to obtain planning permission for the development of Crown
land, a non-statutory administrative procedure, involving consultation with the
local planning authority, provided equivalent safeguards. Provision for removal
of the Crown™s immunity was made by the Planning and Compusory Purchase
Act 2004, subject to a number of exceptions and quali¬cations, for instance in
relation to enforcement action and urgent Crown building developments ˜of
national importance™. The Crown is not bound by the statutes providing for
leasehold enfranchisement, but the Government has given undertakings that the
Crown as landlord will, in general, agree to the enfranchisement or extension of
residential long leases under the same quali¬cations and terms applicable to other
landlords. (See HL Deb vol 629, cols 195“7 WA, 11 December 2001.)
352 British Government and the Constitution

Part I of the Health and Safety at Work etc Act 1974, which deals with the
health, safety and welfare of employees and the protection of public health and
safety, is declared to be binding on the Crown, but with important exceptions
relating to enforcement procedures (s 48). In 1978 the Health and Safety
Commission initiated a non-statutory procedure of Crown enforcement
notices, issued in lieu of the statutory improvement and prohibition notices
served on private sector employers. In the event of failure to comply with the
notice an approach is made by the Health and Safety Executive to higher author-
ities in the Crown body concerned. The Government is committed to intro-
ducing legislation which will remove Crown immunity from statutory health
and safety enforcement (HC Deb vol 418, col 386 W, 24 February 2004; HC Deb
vol 429, col 354 WH, 20 January 2005; see also the Government™s comments on
its Draft Corporate Manslaughter Bill, Cm 6755/2006 and the Corporate
Manslaughter and Corporate Homicide Bill 2006).
The tendency of recent legislation has been to remove or restrict Crown
immunity from statutory duties. For instance, the National Health Service
and Community Care Act 1990, section 60, removed Crown immunities (eg,
respecting food hygiene, health and safety and ¬re prevention legislation) from
National Health Service bodies. Section 159 of the Environmental Protection
Act 1990 exempli¬es an approach to Crown immunity that is characteristic of
recent statutes:

159. Application to Crown.
(1) Subject to the provisions of this section, the provisions of this Act and of regulations
and orders made under it shall bind the Crown.
(2) No contravention by the Crown of any provision of this Act or of any regulations or
order made under it shall make the Crown criminally liable; but the High Court or, in Scotland,
the Court of Session may, on the application of any public or local authority charged
with enforcing that provision, declare unlawful any act or omission of the Crown which con-
stitutes such a contravention.
(3) Notwithstanding anything in subsection (2) above, the provisions of this Act and of
regulations and orders made under it shall apply to persons in the public service of the Crown
as they apply to other persons.
(4) If the Secretary of State certifies that it appears to him, as respects any Crown
premises and any powers of entry exercisable in relation to them specified in the certificate
that it is requisite or expedient that, in the interests of national security, the powers should
not be exercisable in relation to the premises, those powers shall not be exercisable in rela-
tion to those premises; and in this subsection ˜Crown premises™ means premises held or used
by or on behalf of the Crown.
(5) Nothing in this section shall be taken as in any way affecting Her Majesty in her
private capacity.

The Government con¬rmed that any declaration of non-compliance in terms
of section 159(2) ˜would be followed by immediate corrective action™ (The
353 Crown and government

Citizen™s Charter, Cm 1599/1991, p 46). Equivalent provision as regards the
Crown is made by the Food Safety Act 1990, section 54 and the Environment
Act 1995, section 115. (See also the Competition Act 1998, section 73.)
The Government™s policy, it has been a¬rmed, is to ensure that government
departments and other Crown bodies ˜are not shielded from obligations placed
upon others™ (HC Deb vol 223, col 490, 21 April 1993). ˜Crown immunity is
being removed as legislative opportunities arise . . . Continuing immunities
should not be used to shelter inadequate standards in areas where the Crown is
not at present bound by existing requirements. Crown bodies are expected to
comply as though these requirements applied to them™ (HL Deb vol 606, col 98
WA, 4 November 1999).
The Crown bene¬ted in the past from a far-reaching privilege relating to the
production of evidence in court, to which the name ˜Crown privilege™ was aptly
applied. This doctrine, rooted in the royal prerogative, enabled a minister of the
Crown to disallow the production of any document in a court of law by invok-
ing the public interest. The courts were obliged, although with increasing reluc-
tance, to submit to the minister™s decision. The coup de grâce to this absolute
ministerial discretion was administered in Conway v Rimmer [1968] AC 910, in
which the House of Lords upheld the power of the courts to review and,
in an appropriate case, to set aside the objection of the executive to disclosure.
In Rogers v Home Secretary [1973] AC 388, ˜Crown privilege™ was reinterpreted
as a rule of ˜public interest immunity™, which gives a quali¬ed protection to doc-
uments bearing on important state interests: it is for the court to balance any
such interest against the public interest in the due administration of justice.
In coming to its decision the court must ensure that a party™s right to a fair trial
(Article 6 of the European Convention on Human Rights) is not infringed by
the exclusion of evidence. (See as to this R v H [2004] UKHL 3, [2004] 2 AC
134.) The government™s use (some would say abuse) of public interest immu-
nity has on occasion caused deep legal and political controversy, as when min-
isters sought in the early 1990s to rely on the doctrine to withhold material
evidence from the criminal trials of directors of companies that had been
engaged in covert trading (including, it was alleged, arms trading) with Saddam
Hussein™s Iraq. The defendants argued that such trade as their companies had
undertaken was done with the full knowledge, indeed with the positive encour-
agement, of the United Kingdom™s secret intelligence service (MI6). It was this
controversy which led to the establishment of the Scott inquiry (see A Tomkins,
The Constitution after Scott (1998), ch 5 and see further below, pp 572, 586“7).
The Crown still enjoys certain privileges and immunities in legal proceedings
to which it is a party “ in particular, the remedies of injunction and speci¬c per-
formance are not available in civil proceedings against the Crown: Crown
Proceedings Act 1947, section 21. A declaration can be granted in lieu of these
remedies and, as Lord Bridge observed in Factortame Ltd v Secretary of State for
Transport [1990] 2 AC 85, 150, ˜A declaration of right made in proceedings
against the Crown is invariably respected™. Judicial interpretation of section 21
354 British Government and the Constitution

has caused particular problems in Scots law, on which see Davidson v Scottish
Ministers 2002 SC 205 (Court of Session) and 2006 SLT 110 (House of Lords)
and Beggs v Scottish Ministers 2005 SC 342 (Court of Session, at the time of
writing on appeal to the House of Lords) (see Tomkins in A McHarg and
T Mullen (eds), Public Law in Scotland (2006)).
Some public bodies are set up to perform managerial or administrative
functions on behalf of the Crown and so may bene¬t from privileges or immu-
nities of the Crown “ in particular, they may share in Crown immunity from
statutory liability. A statute constituting a new public body will often say
expressly whether or not it is to be regarded as acting on behalf of the Crown.
For instance, the Health Protection Agency Act 2004, Schedule 1, para 5(1),
provides that the Agency ˜is not to be regarded as the servant or agent of the
Crown or as enjoying any status, immunity or privilege of the Crown™; whereas
the Water Act 2003, section 34(1) provides that the functions of the Water
Services Regulation Authority established by the Act are performed ˜on behalf
of the Crown™. If the statute is not explicit on this point, the question has to
be resolved on a consideration of the functions of the public body and the
degree of its independence: see Tamlin v Hannaford [1950] 1 KB 18. Even if a
public body acts as the agent of the Crown, it is not necessarily to be identi¬ed
with the Crown for all purposes. In British Medical Association v Greater
Glasgow Health Board [1989] AC 1211 the House of Lords held that the Health
Board, although set up to perform functions on behalf of the Crown, was
not within the protection of section 21 of the Crown Proceedings Act 1947
(see above).
A former immunity of the Crown from liability in tort for injury or death
caused to members of the armed forces, as provided in section 10 of the
Crown Proceedings Act 1947, was abolished by the Crown Proceedings
(Armed Forces) Act 1987, but not retrospectively. In Matthews v Ministry of
Defence [2003] UKHL 4, [2003] 1 AC 1163 the House of Lords held that the
surviving immunity under section 10 was not incompatible with Convention
rights (Article 6(1) of the Convention, given e¬ect by the Human Rights
Act 1998).
See generally Tomkins, ˜Crown privileges™, in M Sunkin and S Payne (eds),
The Nature of the Crown (1999).

2 Monarchy and the prerogative
In a constitutional monarchy like ours the Sovereign is the head of state
and symbolically represents the nation, but he or she is not the head of
government. As Vernon Bogdanor succinctly observes (below, at p 65), in a
constitutional monarchy we ¬nd ˜a set of conventions which limit the dis-
cretion of the sovereign so that his or her public acts are in reality those of
355 Crown and government

Vernon Bogdanor, The Monarchy and the Constitution (1997),
pp 61“2, 63
The functions of a head of state, where that office is separated from that of the head of gov-
ernment, are generally of three main kinds. First, there are constitutional functions, primarily
of a formal and residual kind, such as appointing a prime minister and dissolving the leg-
islature. Secondly, the head of state carries out a wide variety of public engagements and cer-
emonial duties. Thirdly, and perhaps most important, there is the symbolic or representative
function, by means of which the head of state represents and symbolizes not just the state but
the nation. It is this role of interpreting the nation to itself that is the crucial one; the cere-
monial activities “ once dismissed by President de Gaulle as opening exhibitions of chrysan-
themums “ are means through which the head of state can be seen as fulfilling his or her
representative functions. That is why the long withdrawal from public duties of Queen Victoria
after the death of the Prince Consort in 1861 proved so damaging to the monarchy. To be an
effective symbol, a head of state and particularly a sovereign has to be seen. There is a the-
atrical element to effective representation, and, unless this is recognized, a head of state will
lack the authority which comes from public support. Then, in the long run, he or she will find
it impossible, lacking that authority, to perform his or her constitutional functions effectively.
In his book The English Constitution, first published in 1867, Walter Bagehot drew a famous
distinction between the ˜efficient™ and the ˜dignified™ elements of the constitution. The ˜effi-
cient™ elements were those with the power to make and carry out policy, such as the cabinet.
The ˜dignified™ elements, by contrast, such as the monarchy, enjoyed little effective power.
This did not mean, however, that they were unimportant or superfluous. On the contrary,
they were of fundamental significance in symbolizing and reinforcing national unity. They
helped to reconcile the ruled to the rulers. It was the ˜dignified™ elements in the constitu-
tion which created the aura of authority that helped to render government legitimate.
It is easier for a head of state to fulfil this ˜dignified™ function if the ˜efficient™ functions
are located elsewhere, for any exercise of the efficient functions is almost bound to be con-
troversial. Thus, when he or she exercises the ˜efficient™ functions, the head of state will
cease to be able to represent all of the people; he or she will be representing only the par-
ticular cross-section who agree with his or her activities. That is a fundamental problem with
countries where the positions of head of state and head of government are combined.

Bogdanor remarks that a head of state in a republic, even if not the same person
as the head of government, is likely to be a ¬gure with a political history:

[T]he fact that the head of state has a political history must always make it more difficult to
fulfil the symbolic and representative role successfully. In a monarchy, by contrast, the head
of state has no political history. Provided that the sovereign carries out the constitutional
functions in an impartial way, he or she is in a better position to represent the nation as
a whole and to be a representative whom everybody can accept.

A republican riposte might be that a hereditary monarch, albeit without a polit-
ical history, embodies a regal history and patrician associations which may also
356 British Government and the Constitution

be a disability in representing the nation as a whole. (See Tom Nairn, The
Enchanted Glass: Britain and its Monarchy (rev edn 1994).)
In the modern constitution the Queen still possesses certain residual rights and
powers. As a source of in¬‚uence on government she has, as Bagehot remarked
(above, at p 111), ˜three rights “ the right to be consulted, the right to encourage,
the right to warn™. Occasions for the exercise of these rights still exist, for instance
in the Prime Minister™s weekly audience with the Queen, but to what extent they
are asserted it is di¬cult to know, especially as regards the living monarch. Peter
Hennessy is persuaded of ˜the continuing political in¬‚uence of the monarchy as
practised by George VI and Elizabeth II™ (The Hidden Wiring (1995), p 49 and see
pp 63“70). Likewise, one of the present Queen™s biographers, Ben Pimlott, chron-
icles the Queen™s personal involvement in the selection of the Prime Minister as
recently as 1957 and 1963, judging her action in the latter year, ˜in e¬ect to collude
with™ outgoing Prime Minister Harold Macmillan™s scheme for ˜blocking™ the
front-runner RA Butler from replacing him, as ˜the biggest political misjudge-
ment of her reign™ (Ben Pimlott, The Queen: Elizabeth II and the Monarchy (2nd
edn 2002), p 335). That said, however, there can be little doubt that royal
in¬‚uence on government has declined substantially since the reign of Queen
Victoria. (See F Hardie, The Political In¬‚uence of the British Monarchy 1868“1952
(1970); Lord Simon, ˜The in¬‚uence and power of the Monarch in the United
Kingdom™ (1982) 63 The Parliamentarian 61; R Brazier, Constitutional Texts
(1990), pp 127“8, 417“35; Bogdanor, above, pp 69“74.)
We have already seen that most of the surviving powers, privileges and
immunities which were once aspects of the royal prerogative have been appro-
priated by the government. Even when it is the Queen who acts, she is normally
obliged by convention to do so in accordance with the advice of her ministers.
There remain, however, a few prerogative powers “ aptly named ˜reserve powers™
by Geo¬rey Marshall [2002] PL 4 “ which may still be exercised by the Queen
in her own judgement in exceptional circumstances.

(a) Appointment of the Prime Minister
Legally, the Queen has the power to appoint whomsoever she wishes to be her
Prime Minister. Indeed, if she so desired, she has the legal power to appoint no
one at all to the o¬ce. There is no legal requirement that there be at all times
a Prime Minister. While this remains the legal position, in reality the Queen™s
choice of Prime Minister is governed by the convention, grounded in political
necessity, that she must appoint the man or woman who can form a govern-
ment which will have the con¬dence of the House of Commons. Normally this
convention clearly indicates the party leader who, having majority support in
the House, has an indisputable claim to be appointed as Prime Minister.
Formerly if a Prime Minister died or personally resigned (other ministers
remaining in o¬ce), the Sovereign might have had to use her own judgement
in making an appointment, but now the main parties all have procedures for
357 Crown and government

electing a successor in such an event. When Mr Harold Wilson announced his
resignation as Prime Minister in March 1976 he did so in terms that it would
take e¬ect when the Parliamentary Labour Party had elected a new leader.
Mr Callaghan having been elected, Mr Wilson formally tendered his resignation
to the Queen and informed her of the result of the election, probably adding his
opinion that Mr Callaghan was assured of majority support in Parliament
(see H Wilson, The Governance of Britain (1976), pp 21“2). Again in 1990
Mrs Thatcher, having decided to withdraw after the ¬rst round of the Conser-
vative leadership election, waited to resign as Prime Minister until Mr John
Major had been elected as leader. In such cases there is no room for the exercise


. 70
( 155 .)