The Crown

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In English jurisprudence, the Crown is the state in all its aspects. In countries that do not have a monarchy, the concept may be expressed as "the State" or "the People", or some political entity, such as "the United States", "the Commonwealth" or "the State of [name]".

Legally, the Crown is a corporation sole that—in the Commonwealth realms, Crown dependencies and any of its provincial or state sub-divisions—represents the legal embodiment of executive, legislative, or judicial governance. It developed first in the United Kingdom as a separation of the literal crown and property of the nation state from the person and personal property of the monarch. The concept spread through British colonisation, and is now rooted in the legal lexicon of the other 15 independent realms. In this context it should not be confused with any physical crown, such as those of the British state regalia.

The term is also found in expressions such as crown land, which some countries refer to as public land or state land, as well as in some offices such as Minister of the Crown, Crown attorney and Crown prosecutor (other terms being District attorney, State prosecutor or public prosecutor).

Origins

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. The Crown as ultimate owner of all property also owns any property which has become bona vacantia.

Divisibility of the Crown

Historically, the Crown was considered to be indivisible. Two judgments, Ex parte Indian Association of Alberta (EWCA, 1982) and Ex parte Quark (House of Lords, 2005) challenged that view, and today the Crown is considered separate in every country, province, state or territory that acknowledges the Queen as head of state, regardless of its degree of independence, once a government is established. The Lords of Appeal wrote, "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.".[1]

Commonwealth realms

The Crown in each of the Commonwealth realms is a similar but separate legal concept. To distinguish the institution's role in one jurisdiction from its place in another, Commonwealth law employs the expression the Crown in right of [place]; for example, the Crown in right of the United Kingdom,[2][3][4][5] the Crown in right of Canada, the Crown in right of the Commonwealth of Australia, etc. Because both Canada and Australia are federations, there are also Crowns in right of each Canadian province and each Australian state.[6]

The Crown's powers are exercised, either by the monarch personally or by his or her representative in each jurisdiction, on the advice of the appropriate local minister, legislature, or judges, none of which may advise the Crown on any matter pertinent to another of the Crown's jurisdictions.

Crown Dependencies

In Jersey, statements by the Law Officers of the Crown define the Crown's operation in that jurisdiction as the Crown in right of Jersey,[7] 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.[8] 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.[9]

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.[10]

In Guernsey, legislation refers to the Crown in right of the Bailiwick,[11] and the Law Officers of the Crown of Guernsey submitted that "[t]he Crown in this context ordinarily means the Crown in right of the république of the Bailiwick of Guernsey"[12] 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."[13] This constitutional concept is also worded as the Crown in right of the Bailiwick of Guernsey.[14]

British Overseas Territories

Following the Lords' decision in Ex parte Quark, 2005, it is held that the Queen in exercising her authority over British Overseas Territories does not act on the advice on the government of the UK, but in her role as Queen of each territory, with the exception of fulfilling the UK's international responsibilities for its territories. The reserve powers of the Crown for each territory are no longer considered to be exercisable on the advice of the UK government. In order 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. [15]

Hong Kong

Hong Kong was a British crown colony/dependent territory. From 1 July 1997 onwards, any reference in any provision to the Crown (or to Her Majesty, to the British Government, to the Secretary of State, or to similar names, terms or expressions) in Hong Kong legislations shall be construed as reference to the Central People's Government of the People's Republic of China or other competent authorities of the People's Republic of China, if it relates to title to land in Hong Kong, involves affairs for which the Central People's Government of the People's Republic of China has responsibility (i.e., defence and diplomatic relations), or involves the relationship between the "Central Authorities" and Hong Kong. Any reference in contexts other than those specified above shall be construed as a reference to the Hong Kong Government.[16] "The Crown" is therefore divisible according to contexts.

In the courts

In criminal proceedings, the state is the prosecuting party and is usually designated on the title or name of a case as "R v" - where R can stand for either Rex (if the current monarch is male) or Regina (if the monarch is female) versus the defendant; for example, a criminal case against Smith might be referred to as R v Smith, and verbally read as "the Crown against Smith".

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.

In Australia, each State uses R in the title of criminal cases and The Queen in criminal appeal cases (i.e., the case name at trial would be R v Smith, if appealed the case name would be Smith v The Queen). Judges usually refer to the prosecuting party as simply "the prosecution" in the text of judgments (only rarely is The Crown used in the text, and never R). In civil cases where the Crown is a party, it is a customary to list the appropriate government Minister as the party instead.

In New Zealand court reporting, 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.

This practice of using the seat of sovereignty as the injured party is analogous with criminal cases in the United States, where the format is "the People" or "the State v. [defendant]" (e.g., People of the State of New York v. LaValle or Commonwealth of Pennsylvania v. Brady) under the doctrine of popular sovereignty. In Federal criminal cases, it is "United States v. [defendant]," as in United States v. Nixon.

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.

See also

References

  1. ↑ Lords of Appeal, Ex parte Quark, 2005
  2. ↑ Lauterpacht, E.; Greenwood, C. J. (1992). International Law Reports 87. Cambridge: Cambridge University Press. pp. 286, 713. ISBN 978-0-949009-99-9.
  3. ↑ Royal Institute of International Affairs (1983). The British Year Book of International Law 53. British Institute of International Affairs. Oxford: H. Frowde. pp. 253, 257, 258.
  4. ↑ Bourne, C. B. (1986). Canadian Yearbook of International Law 23. Vancouver: UBC Press. ISBN 978-0-7748-0259-8.
  5. ↑ The Australian law journal 52. North Ryde: Law Book Co. of Australasia Ltd. 1978. pp. 58, 203, 207. 3910867.
  6. ↑ Ministry of Natural Resources (24 January 2006), Disposition of Public Land to Other Governments and Agencies (PDF), Toronto: Queen's Printer for Ontario, p. 2, at 3.2.B, retrieved 25 April 2010, When public land is required by the federal government or one of its departments, or any provincial ministry, the land itself is not transferred. What is transferred is the responsibility to manage the lands on behalf of Her Majesty the Queen (HMQ). This is accomplished by an Order-in-Council or a Minister's Order that transfers management of land either from HMQ in right of Ontario to HMQ in right of Canada as represented by a department or to HMQ in right of Ontario as represented by another ministry. The Crown does not transfer ownership to itself.
  7. ↑ "Review of the Roles of the Crown Officers" (PDF). Retrieved 7 November 2011.
  8. ↑ "WRITTEN QUESTION TO H.M. ATTORNEY GENERAL". Retrieved 7 November 2011.
  9. ↑ "Succession to the Crown (Jersey) Law 2013". States of Jersey. Retrieved 24 November 2013.
  10. ↑ "The Air Navigation (Isle of Man) Order 2007 (No. 1115)". Retrieved 7 November 2011.
  11. ↑ "The Unregistered Design Rights (Bailiwick of Guernsey) Ordinance, 2005". Retrieved 7 November 2011.
  12. ↑ "Review of the Roles of the Jersey Crown officers" (PDF). Retrieved 7 November 2011.
  13. ↑ "It's a power thing…". Guernsey Press. 21 June 2010. Retrieved 7 November 2011.
  14. ↑ "Review of the Roles of the Jersey Crown officers" (PDF). Retrieved 7 November 2011.
  15. ↑ Overseas Territories: Seventh Report of Session 2007-08, Vol. 2: Oral and Written Evidence. London UK: The Stationery Office, Jul 6, 2008, pp. 49, 296-297
  16. ↑ s 6 Schedule added