The theory of sovereignty and the importance of the crown in the realms of the queen

At the most abstract level, the absence of an accepted concept of the State in England required the Crown to assume the function of source of governmental authority. This might be called the conceptual or symbolic role of the Crown. This tradition has been followed in New Zealand, as it has everywhere the Crown has been established.

The physical absence of the person of the monarch prevented an undue emphasis upon personality, and encouraged the development a more conceptual- if not principled- view of the Crown.

1. 
   Introduction
   

The Crown is legally important because it holds the conceptual place held by the State in those legal systems derived from or influenced by the Roman civil law.² Not only does the Crown provide a legal basis for governmental action, but it also provides much of the legal and political legitimacy for such action. Symbolism can be very important as a source of authority, and is not merely indicative of it,³ and the Crown is essentially a symbol of government.

The role of the Crown as a legitimising principle is arguably more evident in New Zealand than in otherwise comparable countries, such as Australia and Canada. As a signatory to the Treaty of Waitangi 1840 (which has been described as the founding document of the country), it would appear that the Crown may have acquired a degree of authority which is now independent from its British origins.

On another conceptual level, the technical and legal concept of the Crown pervades the apparatus of government and law in New Zealand, as it has in other similar countries. The Crown pervaded, to a degree, the whole apparatus and symbolism of government.⁴ But at the same time there is a divergence between orthodox constitutional theory and the modern political reality, in that the trappings of monarchy do not reflect the reality of political power. This is especially important at a time that the traditional structure of government is being challenged, both by calls in New Zealand for Maori sovereignty or self-government,⁵ and by suggestions for the adoption of a republican form of government.

The Crown is not essential to the legitimacy of government in New Zealand, any more than it is in any other country, but it does confer some legitimacy upon the existing regime.⁶ Some appreciation of orthodox constitutional theory is necessary, so that one of the bases for political legitimacy may be seen.

This paper seeks to identify some of these constitutional theories, and, for illustrative purposes, place them in their New Zealand context. Firstly, it looks at the role of the Sovereign as legal head of the executive government. In this, the Crown is the functional head of the executive branch of government. This might be called the practical role of the Crown. The first section will examine the contemporary relevance of this traditional role. It will be argued that it is important because the Crown retains a practical role as the mechanism through which the daily business of the executive government is conducted.

The second section considers the broader concept of the Crown as the focus of sovereignty. In this respect the Crown is a legal source of executive authority, not simply the means through government is conducted. But it is not the Sovereign him or herself who rules; rather they are the individual in whom is vested executive powers, for the convenience of government. This might be called the legal role of the Crown. This is important because it shows that the Crown retains significant legal powers upon which executive authority is based. Thus, the Crown remains useful as a source of governmental legal authority.

The third section examines some aspects of State theory. The absence of an accepted concept of the State in England required the Crown to assume the function of source of constitutional authority. This tradition has been followed in New Zealand, and this has important consequences, particularly in relation to the Treaty of Waitangi. This might be called the conceptual or symbolic role of the Crown. This is important because the Crown fulfils the function exercised by a State in many other jurisdictions, yet the Crown is not simply a metonym for the State.

'The Crown' itself, in British and Commonwealth jurisprudence, is a comparatively modern concept.⁹ As Maitland said, the king was merely a man, though one who does many things.¹⁰ For historical reasons the king or queen came to be recognised in law as not merely the chief source of the executive power, but also as the sole legal representative of the State or organised community.¹¹

According to Maitland, the crumbling of the feudal State threatened to break down the identification of the king and State, and as a consequence Coke recast the king as the legal representative of the State.¹² It was Coke who first attributed legal personality to the Crown.¹³ He recast the king as a corporation sole, permanent and metaphysical.¹⁴

The king’s corporate identity¹⁵ drew support from the doctrine of succession that the king never dies.¹⁶ It was also supported by the common law doctrine of seisin, where the heir was possessed at all times of a right to an estate even before succession.¹⁷ Blackstone explained that the king:

Generally, and in order to better conduct the business of government, the permanent and undying Crown was accorded certain privileges and immunities not available to any other legal entity.²⁰ Blackstone observed that '[t]he King is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing, in him is no folly or weakness'.²¹ Mathieson has proffered the notion that the Crown may do whatever statute or the royal prerogative expressly or by implication authorises, but that it lacks any natural capacities such as an individual or juridical entity may possess.²²

In the course of the twentieth century the concept of the Crown succeeded the king as the essential core of the corporation, which is now regarded as a corporation aggregate rather than a corporation sole.²³ In a series of cases in both the United Kingdom and New Zealand we can see the courts struggling to categorise the nature of the Crown.²⁴

In Re Mason²⁵ Romer J. stated that it was established law that the Crown was a corporation, but whether a corporation sole (as generally accepted) or a corporation aggregate (as Maitland argued) was uncertain. Maitland believed that the Crown, as distinct from the king, was anciently not known to the law but in modern usage had become the head of a 'complex and highly organised "corporation aggregate of many”- of very many'.²⁶ In Adams v Naylor,²⁷ nearly twenty years later, the House of Lords adopted Maitland’s legal conception of the Crown.²⁸

Although the House of Lords in 1977, in Town Investments v Department of the Environment,²⁹ accepted that the Crown did have legal personality, it also adopted the potentially confusing practice of speaking of actions of the executive as being performed by 'the government' rather than 'the Crown'.³⁰ The practical need for this distinction is avoided if one recognises the aggregate nature of the Crown.³¹ 'The government' is something which, unlike the Crown, has no corporate or juridical existence known to the constitution. Further, its legal definition is both legally and practically unnecessary.

In Town Investments³² Lord Simon, with little argument, accepted that the Crown was a corporation aggregate, as Maitland had believed. This appears to be in accordance with the realities of the modern State, although it was contrary to the traditional view of the Crown. Thus, the Crown is now seen, legally, as a nexus of rights and privileges, exercised by a number of individuals, officials and departments, all called 'the Crown'.

However, more recently, in M v Home Office,³³ the English Court of Appeal held that the Crown lacked legal personality and was therefore not amenable to contempt of court proceedings.³⁴ But it is precisely because in the Westminster-style political system in the United Kingdom there was no the Continental-style notion of a State, nor an entrenched constitution,³⁵ that the concept of the Crown as a legal entity with full powers in its own right arose. Town Investments³⁶ must in any event be regarded as the definitive statement of current English law.

The development of the concept of the aggregate Crown from the corporate Crown provides sufficient flexibility to accommodate the reality of government, without the need for abandoning an essential constitutional grundnorm³⁷ in favour of a very undeveloped and inherently vague concept of 'the government'.³⁸ Thus, for reasons principally of convenience, the Crown became an umbrella beneath which the business of government was conducted.

The Crown has always operated through a series of servants and agents, some more permanent than others. The law recognises the Crown as the body by whom the business of executive government is exercised.³⁹

Whether there is a Crown aggregate or corporate, the government is that of the Sovereign,⁴⁰ and the Crown has the place in administration held by the State in other constitutional traditions. The Crown, whether or not there is a resident Sovereign, acts as the umbrella under which the various activities of government are conducted, and with whom, in the New Zealand context, the Maori may negotiate as Treaty of Waitangi partner.⁴¹ Indeed, in this country the very absence of the Sovereign has encouraged this modern tendency in New Zealand for the Crown to be regarded as a concept of government quite distinct from the person of the Sovereign.⁴²

The monarchy does however have a role beyond the symbolic. In his analysis of the Crown in his own day (1865), Bagehot seriously underestimated its surviving influence.⁴³ His famous aphorism, that a constitutional Sovereign has the right to be consulted, to encourage, and to warn,⁴⁴ can hardly express the residual royal powers of even the late nineteenth century.⁴⁵ It may describe the royal powers today, but does not explain why the inherited concept of the supremacy of the Crown should leave the constitution so centred upon an institution lacking real power.

But Bagehot, like Palmerston and Gladstone wanted the monarchy relegated to the status of a museum piece, despite the Sovereign’s 'right to be consulted, to encourage, and to warn'.⁴⁶ This passive role was not that envisaged by George IV, William IV, Victoria or Edward VII, nor that held by the majority of statesmen and textbook writers over this period. The latter felt that the Sovereign’s role as head of State in a popular parliamentary system had still to be satisfactorily defined, and might well be rather wider than that assigned to it be Bagehot.⁴⁷

Dicey and Anson, the leading authorities of their own day, were inclined to advocate a stretching of the royal discretion, and, to some extent at least, the monarchy appeared to operate at a political level under Edward VII in much the same way as it did under George IV,⁴⁸ though there had been a clear change in the basis of royal authority. This was now almost totally dependent upon parliamentary support. But there has been no comprehensive study which offers evidence to show that the exercise by the Crown of the rights to be consulted, to encourage, and to warn, has influenced the course of policy,⁴⁹ though instances have been recorded.⁵⁰

C. The Crown as the focus of sovereignty
The Crown is more than just the mechanism through which government is administered. It is also itself one of the sources of governmental authority, as a traditional source of legal sovereignty. Not only is government conducted through the Crown- as discussed above- but some governmental authority is derived from the Crown, as the legal focus of sovereignty.

'Sovereignty' put simply, is the idea that there is a 'final authority within a given territory'.⁵¹ But a definition is not enough; an explanation of its role or purpose in a society is arguably more important. Foucault has identified four possible descriptions of the traditional role of sovereignty:

(ii) as a justification for the construction of large-scale administrative monarchies;

(iii) as an ideology used by one side or the other in the seventeenth century wars of religion; and

(iv) in the construction of parliamentary alternatives to the absolutist monarchies.⁵²

But the concept of sovereignty, however understood, is especially important because it has become part of the language of claims by indigenous people, as in New Zealand, where Maori claims are based on the conflicting concept of tino rangatiratanga, or chiefly authority.⁵⁴ The particular problems this causes in New Zealand cannot be examined here, but briefly it represents the claims of an antecedent regime to survival despite apparently ceding sovereignty to the Crown in the Treaty of Waitangi. Indeed, it is significant that most talk of 'sovereignty' in the second half of the twentieth century concentrated upon the sovereignty of racial groups, and particularly, the so-called indigenous peoples.⁵⁵

Sovereignty has assumed different meanings and attributes according to the conditions of time and place, but at a basic level it requires obedience from its subjects and denies a concurrent authority to any other body.⁵⁶ In New Zealand and elsewhere the Sovereign is formally responsible for the executive government, and indeed is specifically so appointed by the Constitutions of most Commonwealth countries of which Her Majesty is head of State.⁵⁷

It will be immediately apparent that there is a divergence between abstract law and political reality, for substantial political power lies in politicians rather than the Sovereign. Political orthodoxy also appears to hold that for a constitution to be legitimate it must derive from the people. Yet, the New Zealand constitution is not apparently based legally on the sovereignty of the people, but rather on that of the Queen-in-Parliament.

In the Westminster tradition, it is Parliament, in contrast to the Crown, which is widely regarded as being the focus of political power.⁵⁸ Joseph assumed therefore that it is the people rather than Parliament who is sovereign.⁵⁹ But it would seem that sovereign authority is legally vested in the Crown-in-Parliament, politically in the people.⁶⁰ Legally, this can be seen as less than ideal or even confused, but a constitution is more than merely a legal structure.⁶¹

The authority of government is based upon several sources. Even were authority legally derived from the people, as it appears to now be in Australia,⁶² it is not clear how the position of the Maori people of New Zealand can be reconciled,⁶³ in particular, the preservation of their tino rangatiratanga, or chiefly authority. For the Maori retained to themselves at least some degree of political power under the Treaty of Waitangi, power which has its origins in traditional sources rather than the popular will. The Crown also claims some degree of authority based upon traditional sources, including mystique and continuity.⁶⁴

The origins and nature of constitutional authority, whether in a monarchy or a republic, are important. But although a constitution can say, as does that of Papua New Guinea, that it is derived from the popular sovereignty of the people,⁶⁵ this may be confusing legal with political authority. Where the Crown exists, and no formal entrenched constitution has been adopted, difficult questions of the basis of governmental authority can be avoided.

There has been to date comparatively little theoretical analysis of the conceptual basis of governmental authority in New Zealand.⁶⁶ There has been much discussion focused on the legitimacy of government derived from the Treaty of Waitangi.⁶⁷ But there has been little work done towards an understanding of the nature of governmental authority in New Zealand, except by those who argue that there is too much (or too little) involvement of government in individual lives.⁶⁸ This dearth of work may be due to apathy,⁶⁹ but it could also be influenced by an underlying suspicion of abstract theory which can be traced in British tradition of political thought from the seventeenth century, if not earlier.⁷⁰

But in Canada there have been several major studies of the conceptual basis of government. In particular, in 1985 the Law Reform Commission of Canada released a working paper which called for a re-examination of the concept of the Federal Crown in Canadian law.⁷¹ The working paper called for the recognition of a unitary federal administration in place of the legal concept of the Crown.⁷² The paper specifically asked:
to what extent should Canada retain the concept of the Crown in federal law? Should we replace the concept of Crown with the concept of State or federal administration?
The Commission briefly described what it termed the chaotic and confusing historical treatment of 'the Crown' in English and Canadian law. Historical inconsistencies and contradictions in the treatment of the concept of the Crown cannot and need not be rationalised. Judges, legislators, and writers are not always taking about the same thing. They may mean the Sovereign herself, the institution of royal power, the concept of sovereignty, the constitutional head of State, judicial instructions and actors.⁷³

To recognise the political reality the authors of the working paper suggested that the concept of the Crown should be abolished, and the Sovereign relegated to the status of constitutional head of State.⁷⁴ Discarding monarchical terminology and limiting the Crown to its purely formal role would, in the opinion of the Commission 'reduce terminological confusion, historical biases, and anti-democratic and non-egalitarian concepts so far as they affect individuals in the relationships between bureaucrats and the majority'.⁷⁵ The Crown would be replaced by the 'administration'. The authors of the working paper wanted to recognise the executive branch of the State.⁷⁶ Others have also considered the legal nature of the Crown or State in Canada,⁷⁷ but the issue is not yet settled.⁷⁸

Cohen believed that the methodology of the working paper itself was flawed because it focused on theoretical and abstract analyses of the State.⁷⁹ Essentially, the difficulty is that there is no developed concept of the State or nation in Commonwealth constitutional theory.⁸⁰ Moore attributes this to parliamentarian mistrust inspired by the association between civil law and Baconian theory.⁸¹ It is equally true that modern theoretical studies of the State have been limited even in Continental Europe.⁸² But the modern concept of the State has been described as a critical subject of inquiry.⁸³

In New Zealand executive authority is also, like Canada, formally vested in the Crown.⁸⁴ The government does not require parliamentary approval for most administrative actions; nor need it show popular approval or consent for these actions-- though the rule of law and political expediency, and the strictly limited range of powers held by the Crown, prevent authoritarian Crown government.⁸⁵

The executive authority of a country could be vested in a president, the Governor-General, or the Queen irrespective of the basis of sovereignty. But in our constitutional arrangements the sole focus of legal authority is the Crown-in-Parliament. This institution enjoys full legal sovereignty or supremacy. The Crown itself is allocated executive functions, and, within a limited field, requires no other legal authority than its own prerogative.⁸⁶

This approach has the advantage of simplicity, leaving broader questions of sovereignty unanswered.⁸⁷ As such it owes much to the British tradition of a constitution as something which evolves, and for which theory is sometimes developed subsequent to the practice.⁸⁸ One aspect of this paucity of theory, if it may be so called, is the weakness-- or absence, of a general theory of the State.⁸⁹

In Canada, problems with the place of the French-speaking minority, and the federal nature of the country, meant that difficult questions of the location and nature of governmental authority had to be addressed. Thus, claims by Quebec for special status within the federation required an analysis of the nature of power exercised by federal and provincial governments. The existence of an entrenched constitution also meant that this could substitute for the Crown, as in the United States of America, as a conceptual focus of government.

Clarke argues that in Canada the marriage of the parliamentary form of government to the federal principle makes the determination of legislative authority problematic, at least in part, because it fails to develop an adequate conceptualisation of sovereignty. In the absence of a better understanding authority is described merely in terms of a division of power.⁹⁰

There have been no technical or practical reasons for these difficult questions of the sources of governmental authority to be answered in New Zealand. To some extent, the asking of such questions was also avoided.⁹¹ Thus, the existence of the Crown, whilst providing a convenient legal source for executive government, has also acted as an inhibitor of abstract constitutional theorising. As a consequence, in Laski’s view, the Crown covered a 'multitude of sins'.⁹² Loughlin also has described the Crown as a poor substitute for the State, because the public and private aspects of the Sovereign’s responsibilities.⁹³ Whilst this might not be desirable it provides a convenient cover behind which the business of government is conducted, unworried by conceptual difficulties.