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Modernising the Constitution - a Crown Act

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Modernising the Constitution - a Crown Act International Law Research; Vol. 10, No. 1; 2021 ISSN 1927-5234 E-ISSN 1927-5242 Published by Canadian Center of Science and Education Modernising the Constitution - A Crown Act Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: October 29, 2020 Accepted: November 18, 2020 Online Published: November 23, 2020 doi:10.5539/ilr.v10n1p13 URL: https://doi.org/10.5539/ilr.v10n1p13 Given the growth of dictatorships around the world and their intent to undermine democracy - including that in the UK - it is important that our Constitution be: accessible, transparent, intelligible and robust. Unfortunately, it is none of these things. Indeed, it is little more than a patchwork of common law cases supplemented by legislation.1 Much of this is very antiquated. And, a lot is obsolete.2 Much, also, is scarcely intelligible to lawyers (save for a few constitutional lawyers)3 and most of it is wholly unintelligible to the general public. Finally, there are many gaps and inconsistencies. The purpose of this article is to argue the need for a Crown Act. One which sets out almost all 4 of the Crown’s prerogatives and indicates which should be dispensed with. The purpose of this article is, also, to argue that what is required is not only a Crown Act, but also the following, a: Parliament Act; and a Government Act. In due course, all three of these could be amalgamated into one Constitution Act. However, it is much better to set matters out independently at first, in order to enable Parliamentarians (‘MPs’) and others to see what is what. It also prevents things being missed. Finally, a review of Crown prerogatives is timely. Indeed, long overdue 5 since such are becoming less and less relevant - given that the role of the sovereign today is a formal (ceremonial) one unlike, in earlier times, when the sovereign exercised executive power in person. The result is that the need for the law - and the courts - to uphold special legal rights (also called ‘prerogatives’ or ‘pre-eminences’)6 in respect of the sovereign has greatly diminished and it will continue to do so since it is, manifestly, the will of the general public in a democratic society that Parliament has the pre-eminent role in the enactment of legislation (to which the Crown is also made subject). Also, that Parliament oversights the direction (and behaviour) of the 1 Halsbury, Laws of England (4th ed), vol 8(2), para 1, the ‘United Kingdom constitutional law is an incomplete system, consisting of piecemeal legislation, ancient common law doctrines, and constitutional conventions which are binding in a political rather than a legal sense. The United Kingdom constitution lacks the coherence of comprehensive modern constitutions.’ 2 In 1908, the great legal historian, Maitland, talked of prerogatives of ‘doubtful existence’ and ‘prerogatives which exist by sufferance, merely because no one has thought it worthwhile to abolish them.’ FW Maitland, The Constitutional History of England (CUP, 1963), p 421. 3 Even many modern constitutional lawyers get it wrong since they have little knowledge of legal history and they cannot read the old latin or law French. Further, they do not know (or trouble to find out) what older law books and other texts on the constitution exist (much useful material is contained in the old legal abridgments and the Rolls of Parliament). 4 Crown prerogatives relating to Parliament are better placed in a Parliament Act. And, those relating to the civil service, the foreign office and its diplomatic functions etc, are better placed in a Government Act. Finally, others should be in specific legislation (for example, an Armed Forces Act, when the prerogative specifically relates to military matters). Thus, ease of reference is important. 5 See House of Commons, Public Administration Select C-ee, 4th Report of Session 2003-4. Taming the Prerogative: Strengthening Ministerial Accountability to Parliament. HC 422 (16 March 2004)(‘HC’). See also M1 in this article (in 1), pp 4-5. 6 From Tudor times, the courts began to recognise a distinction between the Crown comprising the sovereign in person and the Crown comprising an executive institution (the State). It did this by recognising the sovereign both as a human being (who died) and the sovereign as a corporation sole (a legal entity, which did not). More especially, it recognised the latter as having a political function. Thus, emerged the idea of the sovereign having a body natural and a body politic (or political body). See EH Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, 1957). See also M4, p 14. 13 ilr.ccsenet.org International Law Research Vol. 10, No. 1; 2021 executive - including the civil service. Further, the Crown, in practice, today, is subject to Parliament - the expression the ‘Crown’ referring both to the sovereign in person (i.e. in the body natural) 7 and in the body politic.8 In conclusion, this article argues the need for a Crown Act. This Act should also place in legislation (in a modern format) the contents of charters which regulate the duchies of Cornwall and Lancaster since these duchies comprise appanages of the Crown held by the sovereign in the body politic. 1. INTRODUCTION It is possible to list - in chronological order - all constitutional legislation still extant (see Appendix A). Also, to list all (or almost all) the principal texts on constitutional law (see Appendix B). However, of greater use, generally, to indicate the legal history of the prerogatives of the Crown (the ‘Crown prerogatives’) are the following: Staunford, An Exposition of the King’s Prerogative (1567-1607);9 Coke, Institutes of the Laws of England (1628-41);10 Blackstone, Commentaries on the Laws of England (1765-9);11 Bacon, A New Abridgment of the Law (5th ed, 1795-8);12 J Chitty Jun, A Treatise of the Law of the Prerogatives of the Crown (1820);13 Halsbury, Laws of England.14 Prior to the 17th century, the eminence of the sovereign was such that it was somewhat dangerous to seek to legally analyse his prerogative.15 Further, all of Staunford, Coke and Blackstone were cautious (perhaps, unduly deferential) in what they said. The first modern text on the prerogatives of the Crown was that of Chitty in 1820. His was a treatise which sought to comprehensively cover almost all the Crown prerogatives - albeit, it was not highly detailed.16 An excellent analysis of Crown prerogatives was provided in volumes 6 and 7 of the first edition of Halsbury in 1909.17 Thereafter, later editions of Halsbury have become increasingly terse and fragmented in their analysis. This has resulted in the loss of a comprehensive assemblage of the prerogatives. There were also more modern legal texts on constitutional law from the Victorian period. However, many of these have fallen by the wayside, to be replaced by student or academic works which do not emphasise sufficiently that many Crown prerogatives are obsolete or rarely exercised. And, that almost all are now part of the sovereign’s body politic - 7 The legal writer, Bracton, as long ago as c. 1240-50, asserted that ‘lex facit regem’ (‘the law makes the king’) see H Bracton (trans Thorne), On the Law and Customs of England (Cambridge UP, 1968-76), vol 2, p 33. However, it was not until after the Civil War (1642-9) as well as the deposition of James II (1685-8, who was held to have abdicated the throne by fleeing) with the election by Parliament of William of Orange (William III (1688-1702) that this became more of a reality. The Bill of Rights 1688 also asserted (and continues to do so) that ‘the laws of England are the birthright of the people thereof; and all the kings and Queens who shall ascend the throne of this realm ought to administer the government of the same, according to the said laws.’ (italics supplied) 8 The words the ‘executive’, the ‘Crown’ (when not used to refer to the sovereign in person) the ‘body politic’ and the ‘State’ are synonyms. To a certain extent the ‘government’ is the same. However, the latter expression is, often, used in a more restricted sense to refer to the political party in power. See generally, M1, p 4. AW Bradley & KD Ewing, Constitutional and Administrative Law (15th ed, 2011), p 33 ‘The Queen may reign, but it is the prime minister and other ministers who rule.’ 9 W Staunford, Exposition of the Kinges Prerogative collected out of the great Abridgement of Fitzherbert, and other olde writers of the lawes of England; [with] the process to the same prerogative appertayning.’ The first edition was in 1567. Later editions were published in 1567, 1568, 1573, 1577, 1590 and 1607. 10 E Coke, Institutes of the Laws of England (W Clarke & Sons, London, last ed, 1824). See also Sir Matthew Hale’s Prerogatives of the King, DEC Yale (ed), Selden Society, vol 92 (London, 1976). 11 W Blackstone, Commentaries on the Laws of England (Oxford, Clarendon Press, 1st ed, 1765-9, University of Chicago Press, rep 1979). 12 M Bacon, A New Abridgment of the Law (5th ed, 7 vols, 1798). Volume 5 (prerogative) contains material on the Crown prerogative. The first edition of Bacon was in 1736-66 (5 vols). The last was in 1832 (8 vols). Bacon is useful since it bridged the historical period from Blackstone (1765) to Chitty (1820) and it was detailed. It is clear that Chitty used Bacon when compiling his own text.
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